Kabir & Kabir (No. 2)

[2020] FamCA 865

FAMILY COURT OF AUSTRALIA

Kabir & Kabir (No. 2) [2020] FamCA 865  

File number(s):

CAC 2337 of 2019

Judgment of:

GILL J

Date of judgment:

15 October 2020

Catchwords:

FAMILY LAW – CHILDREN – interim hearing – parental responsibility – time spent with Father – handover arrangements – where departure from existing interim orders is sought – where there has been noncompliance by the parties with handover orders – where involvement of both parties in long term issues is protective – where no change to current orders is warranted – where verification and certainty in handovers is required – where handover centre enables verification

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA, 65DAA

Cases cited:

SS v AH [2010] FamCAFC 13

U & U (2002) 211 CLR 238.

Morgan & Miles (2007) FLC 93-343

Number of paragraphs:

34

Date of hearing:

17 September 2020

Place:

Canberra

Solicitor for the Applicant:

Mr Cooper

Solicitor for the Applicant:

Ms Heinze

Solicitor for the Other:

Mr Robinson

ORDERS

CAC 2337 of 2019

BETWEEN:

MR KABIR

Applicant

AND:

MS KABIR

Respondent

ROBINSON MCGUINNESS

Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	15 OCTOBER 2020

THE COURT ORDERS THAT:

1.Orders 1 and 2 of the orders of Judge Hughes of 13 December 2019, which are in the following terms

1.Until further order the mother shall have sole parental responsibility for the medical issues and child care issues concerning the children X born … 2017 and Y born … 2018, but before she makes any decision in relation to those issues she shall:

a.        give the father reasonable notice of the decision to be made;

b.        give the father a reasonable opportunity to express any views;

c.        take into account any views expressed by the father; and

d.        advise the father of her decision as soon as practicable.

2.Otherwise the parties shall have equal shared parental responsibility in relation to the children.

Remain in force;

2.Order 9 of the orders of Justice Gill of 7 May 2020, which is in the following terms

Until further order the children X, born … 2017, and Y, born … 2018, shall live with their Mother and spend time with their Father as follows:

a.   every second weekend from 10 am Friday to 4 pm Saturday commencing 8 May 2020;

b.   in the alternate week from 4 pm Friday to 4 pm Saturday commencing 15 May 2020; and

c.   Such additional or alternative times as agreed in writing.

Remains in force

3.That the Children spend time and communicate with the Father by video conference facility, at 5pm on each Wednesday.

4.The Mother shall forthwith:

(a)Ensure that the Father is registered as a parent with the child care centre the Children attend; Inform the Father of the child care centre the Children attend;

(b)Inform the Father of any attendances by the Children of any medical or health practitioner in the past two months, including the contact details of that medical or health practitioner, and shall ensure that the Father is registered and permitted to receive information about the Children from that medical or health practitioner.

5.The Mother and Father shall ensure that they are able to communicate with each other at all reasonable times by email; and

6.The Mother and Father shall inform each other as soon as practicable:

(a)Of any attendance by the Children on any medical or health practitioner, including the contact details of that medical or health practitioner;

(b)Of any injury or illness suffered by the Children; and

(c)Of any change of email address or telephone number.

7.The Mother’s Amended Response to an Application in a case filed 16 September 2020, insofar as it relates to spousal maintenance and property is adjourned and transferred to the Registrar’s list pending further application.

8.The Father’s Application in a Case filed 1 September 2020 is otherwise dismissed

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

Gill J:

1. These proceedings concern the interim arrangements for the children of the parties, X (3yo) and Y (2yo) focussed upon the allocation of parental responsibility, the amount of time they spend with the Father, and the handover arrangements.

2. Although the Mother’s application in a case also sought orders in relation to spousal maintenance and property, those aspects of her application were stood over generally at her application.

3. Currently, orders provide for X and Y to spend time with the Father for one overnight each week.

4. An essential background to the current application can be found in the judgment of 10 August 2020, where the parties sought from the Court conclusive determinations as to the operation of those orders.  The parties were in dispute as to who was, or was not attending for the ordered handovers of the children.  On a number of occasions each had asserted that they had been at the handover, but that the other had not.  The judgment resolved that dispute.

5. The parties each relied upon their own affidavits filed 1 September 2020.

   Principles

6. The paramount consideration in determining what orders should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.

7. In the light of the objects and principles, in order to determine what is in a child’s best interests, the court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. Not every consideration identified at s 60CC will arise in a given case and, of those that may arise, often only a subset have the capacity, in the given circumstances of a case, to determine the outcome, or to bear in any significant manner on the exercise of the discretion.

8. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary to:

   keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made (SS v AH [2010] FamCAFC 13, [81])

9. Despite this limitation:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. (SS v AH [2010] FamCAFC 13, [100])

10. In doing this, the Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation. (U & U (2002) 211 CLR 238)

11. The Court is also required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.

12. If an order is to be made for equal shared parental responsibility then the court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles (2007) FLC 93-343 as “the careful exercise of a structured discretion to determine the appropriate order to be made”. That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

    This case

13. The parties agreed to a number of matters.  They agreed that the children should continue to live with the Mother, and as to arrangements for the Father to be involved with childcare and medical issues (Order 5 sought by the Mother).  They agreed that they should communicate via email and that they should inform each other about various matters (Order 7 sought by the Mother).  Each agreed that there should be a video call weekly with the Father, but differed as to the appropriate evening for that to occur.  No agreement was apparent as to the duration of such calls.

14. The parties are at odds as to the allocation of parental responsibility.  Orders are already in place in relation to this aspect of the dispute.  The orders of Judge Hughes of 13 December 2019 provided that the Mother have sole parental responsibility for medical issues, but that she consult with the Father about such.  Otherwise parental responsibility is equally shared.

15. Both parties seek a departure from this arrangement.

16. The Independent Children’s Lawyer submitted that no evidence was identified to warrant interfering with the order put into place by Judge Hughes.  The evidence does not go to inefficacy in the operation of that interim order to date.  The lack of identification of a change material to the issue of parental responsibility points strongly against a revisiting of the issue.

17. The matters that have gained greater clarity since the making of the orders by Judge Hughes, namely the non-compliance of each of the parents with the orders for handover of the children, and their apparent incapacity to communicate, do not indicate the changes either sought.  While an argument could be mounted that an inability to cooperate indicates that a sharing of parental responsibility is counter the best interests of a child, similarly, at least where the matter is being determined within the limitations of an interim hearing, the polarised nature of the parental relationship points away from one parent being able to determine long term issues without the involvement of the other parent. Where, as here, the merits of either parent in making long term decisions cannot be conclusively determined, the requirement that both parents be involved in the long term decision making is protective against a single parent’s potentially idiosyncratic decision making.

18. Given, in particular, the failure to identify matters that warrant a revisiting of the issue resolved on an interim basis by Judge Hughes, there should be no change to the current orders in respect of parental responsibility.

19. The parties are also at odds regarding both the amount of time that the Father should spend with the children and the mechanism for handover.  Given the findings in the previous judgment as to handover, reliance cannot be placed upon the goodwill of the parties to effect handovers.  Handovers require the capacity to independently verify whether the children have been provided, and whether a parent has attended for the handover, particularly given the Father’s false assertions as to his attendance when he had not, in fact, attended to collect the children on a number of occasions, and the Mother’s assertions as to having attended when she did not.

20. Accordingly, on the basis that it is contrary to the children’s best interests to put into place a regime that is productive of uncertainty as to when they will spend time with their Father (it being undisputed that they should do so), the requirement for certainty as to changeover is an essential ingredient to formulating orders in the children’s best interests in providing for them the opportunity to build a relationship with their father. 

21. Aside from this issue, the Father sought that the children spend two nights every weekend with him.  The Mother sought one night with the Father each second weekend.  Each constituted a significant change from the orders of 7 May 2020, which provide for the Father to spend time with the children each Friday overnight.

22. Part of the Mother’s argument for a reduction in the Father’s time was that the time should be predictable, rather than sporadic as it has been to date.  The Mother also points to resistance shown by the children to changeover on two occasions. 

23. The Mother submitted that she should not miss out on weekends with the children, on the basis that she is busy during the weekend and playdates and the like are to organised for weekends.  The Mother presented no evidence to support such contentions.

24. The ICL did not support two nights blocks with the Father, noting Y’s young age.  The ICL did support a single overnight each week.

25. In this case there was limited evidence going to the nature of the time to be spent.  It may be observed that the time with the Father has been sporadic, undermining the development of relationships between himself and the children.  There is merit in the Mother’s call for regularity in the time between the children and the Father.  The frequency that she proposes, of face to face time once per fortnight is not sufficiently regular.

26. The Father’s call for two night stays appears to be an abrupt change where there has been such sporadic time, for such young children who have had limited time with him, and who have presented some difficulties at changeover already.

27. Orders should cater for one night per week.

28. The form of such an order should be based on ensuring that the handovers take place and are objectively verifiable.  The ICL’s position was that the current orders should remain, that provide for Friday overnight, with handovers at a handover centre, K Services.

29. The ICL observed that there was no evidence indicative that the time pursuant to the orders of 7 May 2020 had not been occurring since 18 August 2020, following the handing down of the previous judgement.  The Mother points to the children being unwilling to go to the Father from K Services on two occasions prior to this.  K Services provided the independent verification to the Father that this was so. 

30. These circumstances support the position advocated by the ICL as being in the children’s best interests.    The necessary independence offered by K Services points to it as, in the absence of some other agreement between the parties, being the optimal arrangement. 

31. On balance, the matters raised by the parties do not point to the appropriateness of a change from the current frequency, time, or handover arrangements.

32. On the issue of the appropriate night for the video call, the ICL observed the benefit of it occurring on a Wednesday rather than a Thursday night, as this falls more evenly in the gap between face to face times. In the absence of other identified factors, Wednesday promotes greater regularity in the contacts that the children have with their Father and should be the arrangement. Although the Father sought that this be for a period of half an hour, given the ages of the children, it is not appropriate that such a duration be imposed upon them.  Rather, a shorter period of ten minutes should be required.

33. The Mother also sought self-executing orders to suspend the Father’s time should he miss three periods without reasonable excuse.  It was not identified who would be the arbiter of such response, absent the matter coming back before the Court.  Such an order should not be made.

34. Further, the Mother sought orders for the Father to give greater than 24 hours’ notice should he not be able to spend time with the children.  While this is preferable, it cannot be assumed that such a course will be available.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       15 October 2020

Orders Sought by the Applicant Father

That the Mother and Father share equal parental responsibility for the children:

X born … 2017; and

Y born … 2018 (“the Children”).

That the Children live with the Mother.

That the Children spend time and communicate with the Father at all times as may be agreed, but failing agreement as follows:

From 4.30pm (or after child care) Friday to 4.30pm each Sunday; and

By video conference facility, from 5pm to 5.30pm on each Wednesday.

That handover shall be facilitated as follows:

If the Children are at a child care centre on Friday, the Father shall collect the Children from the child care at any convenient time;

If the Children are not at a child care centre on Friday, the Father shall collect the Children from within 15 metres of the entrance to G Retail; and

On Sundays, the Mother shall collect the Children from within 15 metres of the entrance to G Retail;

The children are to attend all handovers clean and with clean clothes on;

The Mother and Father are to be physically present at the handover place at the ordered time; and

The Mother and Father shall have liberty to have one support person with them at any handover, but the parties must use their best endeavours to ensure that that person does not communicate directly or indirectly with the other parent.

The Mother shall forthwith:

Ensure that the Father is registered as a parent with the child care centre the Children attend; Inform the Father of the child care centre the Children attend;

Inform the Father of any attendances by the Children of any medical or health practitioner in the past two months, including the contact details of that medical or health practitioner, and shall ensure that the Father is registered and permitted to receive information about the Children from that medical or health practitioner.

The Mother and Father shall ensure that they are able to communicate with each other at all reasonable times by:

Email; and

WhatsApp.

The Mother and Father shall inform each other as soon as practicable: Of any attendance by the Children on any medical or health practitioner, including the contact details of that medical or health practitioner; Of any injury or illness suffered by the Children; and Of any change of email address or telephone number.

Notation

By seeking these orders, the Father does not concede that the children’s best interests are served by remaining in the primary care of the Mother on a final basis.

Orders Sought by the Respondent Mother

Parenting

That the mother have sole parental responsibility for the children X born … 2017 and Y born … 2018;

That the children spend time and communicate with their father as follows:

Each alternate weekend from after day care to 4pm Saturday; and

by video conference facility each Thursday between 4:40pm to 5:00pm; and

at further and alternate times as agreed between the parties.

That changeover shall occur at the children's day care on Fridays at any convenient time for the father provided that time is after 10:00am;

That the father shall bear the costs of the children attending day care each alternate Friday;

That changeover occur at K Services each alternate Saturday;

That in the event the father cannot care for the children during his time with the children, he is to inform the mother no later than 24 hours prior to contact commencing;

That, in the event the father misses more than three contact periods without reasonable excuse the father's time with the children shall be suspended until further order;

Spouse Maintenance/Property

That, by way of spouse maintenance, within 7 days the father shall pay to the mother, to an account nominated by her, the amount of $1,000.00 and shall continue to pay the mother the amount of $1 ,000.00 each 7 days until further Order;

That, within 14 days, the father shall provide financial disclosure in accordance with the Family Law Rules;

That the wife have liberty to re-list on 7 days' notice with respect to financial disclosure.