Kabir & Kabir (No 4)
[2023] FedCFamC1F 440
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kabir & Kabir (No 4) [2023] FedCFamC1F 440
File number(s): CAC 2337 of 2019 Judgment of: GILL J Date of judgment: 30 May 2023 Catchwords: FAMILY LAW - PARENTING – Suspension of children’s time with the father - Interim proceedings – Risk of abuse – Limitations on fact finding – Evidence not sufficiently indicative of risk – Suspension discharged Legislation: Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC, 60CG Cases cited: Eaby & Speelman (2015) FLC 93-654
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Goode & Goode (2006) FLC 93-286
Isles & Nelissen [2022] FedCFamC1A 97
Salah & Salah [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Place: Canberra Number of paragraphs: 58 Date of hearing: 15, 18 and 30 May 2023 Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: JS Family Lawyers Counsel for the Respondent: Mr Thomas - 15 & 18 May 2023;
Mr Nottle - 30 May 2023Solicitor for the Respondent: Brightstone Legal - 15 & 18 May 2023;
KPW Lawyers - 30 May 2023Counsel for the Independent Children's Lawyer: Ms Davis Solicitor for the Independent Children's Lawyer: Robinson McGuinness ORDERS
CAC 2337 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KABIR
Applicant
AND: MS KABIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
30 MAY 2023
THE COURT ORDERS THAT:
1.Order 3 of the orders of 15 May 2023 which suspended orders relating to the father spending time with each of the children is discharged.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
This judgment concerns the interim parenting arrangements for the children of the relationship, X, aged 6, and Y, aged 4, and, in particular, whether there should be an ongoing suspension of their time with the father.
X and Y currently live with the mother, and, until the suspension of orders for them to spend time with the father on 15 May 2023, spent substantial and significant time with the father. That suspension was ordered in the context of a late breaking allegation of sexual abuse by the father upon X, alleged to have occurred on the previous weekend, and coming to the attention of the court on the first listed day for the final trial of the parties’ parenting dispute.
The trial was vacated, time with the father was suspended, and the matter was listed for further interim determination in the context of an extant investigation by authorities of the sexual abuse allegation.
This judgment occurs in the context of further hearing of the interim suspension, with the benefit of more fulsome material, including hospital records and records of the investigation by the Australian Federal Police (the “AFP”). On the further hearing of this matter both the father and the Independent Children's Lawyer (the “ICL”) sought the raising of the suspension of the time with the father, whilst the mother sought that the suspension be continued pending the final hearing, now listed to commence on 28 August 2023.
Background
The litigation to date has been characterised by acrimony, and by frequent contests as to contravention, which have included episodes of finding that the mother has failed to provide the children to the father in breach of the orders, and other occasions when the father alleged non-compliance by the mother, whereas in fact he had failed to attend to collect the children.
The proceedings were listed for final hearing in November 2022, for spousal maintenance, property and parenting orders. That trial was vacated at the last minute due, at least in part, to the late obtaining of legal representation by the mother, who is represented pursuant to the s 102NA scheme. The final hearing was adjourned then to commence on 15 May 2023.
On the first day of trial the mother alleged that X had said things to her that raised an issue as to whether she had been sexually abused over the previous weekend by the father and his brother. The mother filed an affidavit setting out the circumstances and the hearing was adjourned to 18 May 2023, in order to ensure that the mother had set out in complete form the matters that she suggests point to risk of abuse, to allow the father to file evidence in response, and in order to ascertain the progress of any investigations by Child and Youth Protection Services (“CYPS”) and the AFP, the allegation having been taken to the authorities.
Orders were made designating the matter as a Magellan matter, and arranging for the attendance of the liaison officers from CYPS and the AFP on the adjourned date to advise of the progress of the investigation, its anticipated pathway and as to any material that may be available to the court to assist in the determination of the matter. An order was made suspending the children’s time with the father.
The mother filed a supplementary affidavit, along with an affidavit from her solicitor, and the father filed an affidavit from himself, and from his brother Mr R. Records were obtained from the AFP and from the hospital who examined X following the raising of the allegation.
Part way through the hearing of the matter the proceedings were further adjourned to 30 May 2023 as, due to the mother’s then solicitor becoming a witness in the case Legal Aid terminated that grant of aid. It was then necessary to allow the mother time to obtain further representation, which she secured prior to the adjourned date.
The evidence in relation to the allegation
The children spent time with the father on the weekend prior to the trial being due to commence, 13 and 14 May 2023.
The mother produced an email from the father sent at 16:44 on Sunday the 14th May 2023 (Exhibit C1) where the father described to the mother that the General Practitioner (“GP”) had prescribed antibiotics for X. He further alleged that hygiene was an issue, and that X’s undergarments had been soiled with “feces” and “old feces are stuck.” He described:
As usual [X] came and she on Friday night, had a shower and I notice old feces stuck to her undergarments and on her legs as she had not been cleaned properly.
The father further described that on Saturday evening X had complained of abdominal pain, and the following morning of burning urination. As X’s usual GP was unavailable, the father arranged a telehealth consultation, and antibiotics were prescribed. The father asserted that lack of hygiene was an issue. He said that he had administered Panadol and the antibiotics, and that more could be administered at 1900.
The mother alleges that at changeover, at a supervised changeover facility, S Support Service, at around 4:45-4:50 pm on 14 May 2023 X:
Came up to me and told me, while crying, words to the effect that ‘Mama it is very pain there, I am in so much pain.’ When saying these, [X] was pointing at her groin area.
The mother says that the supervisor handed her a bottle of liquid that the mother took to be antibiotics and told her that the father had said that he would send the mother an email about it.
The mother says that during the approximately five minute drive home X, while crying, kept repeating “it is very painful there” whilst indicating her groin area.
When at home the mother says X, as she came out of the car said “mama it is so painful there” while rubbing her groin area with her hand. The mother said that a conversation then took place, in which X appeared “terrified and scared”:
Mother:Don’t rub it. I will take a look once we are inside. But what happened?
[X]:[Mr Kabir] rubbed that area many times, like 10 times. [Uncle] also did the same. I was telling them it was very painful, but they were still touching, and I was very uncomfortable.
The mother explained that ‘[…]’ is a word that refers to an uncle, which the mother took to be a reference to Mr R, the father’s brother. This conversation is what the mother identified as representing the high point in her allegation that X is at risk form the father, on the basis that, on one construction, it is the description of an act or acts of indecency being perpetrated upon X.
The mother says that the following conversation then took place:
Mother: Where were you?
[X]: We were at […] (the father) house. [Mr R] came in the morning.
The mother produced an email from herself to the father sent at 4:53 pm on 14 May 2023 in the following terms:
[X] is saying something different.
She was all OK on Friday at handover.
She is stating someone has touched her vaginal area and [Mr R] was home.
Enough is enough. i can’t tolerate this anymore. you have crossed all the limits.
It’s a shame you are my kids father sorry to say but I am force to say.
The mother’s solicitor’s affidavit recorded that he spoke with the mother at around 4:55 pm. He identified that the conversation was privileged, but that he heard in the background a child crying and saying “[Mr Kabir] touched me, [Mr Kabir] touched me.” The mother did not record in her affidavit either that she had called her lawyer, or that X was saying what was reported by the lawyer, although she told the V Hospital that she had spoken to her lawyer.
The mother says that she immediately called the police, and subsequently she and X were taken to the V Hospital, where X was examined and tested.
The police record of the attendance indicates that the report was received at 5:15 pm, with the police (identified in the document) subsequently attending at the home of the mother. The mother was recorded as telling the attending officers:
•Handover for the custody of the two daughters between herself and the children’s father is on Friday afternoons and Sunday afternoons.
•About 4.55pm today whilst driving in her car from the handover location, she stated that her older daughter [X] was rubbing her private area and stated that she had pain in that area.
Ÿ[X] told [MS KABIR] that her father rubbed her here (pointing to private areas) and washed her.
Ÿ[X] stated that [Mr R] touched her, pulled down her trousers, and touched her there, as she pointed to her private areas.
Ÿ[Mr R] is living in Sydney.
Ÿ[X] stated that it happened on Saturday or Friday.
Ÿ[MS KABIR] contacted her lawyer about the incident straight away.
•[MS KABIR] did not ask her daughter any further questions.
The attending officers also spoke to X, and recorded her as saying:
•“I had a shower and something happened”
•“The soap was inside”
•“It was going that way, that way, that way, it was hurting” whilst gesturing with her hands backward and forth near her genital region.
•When asked how the soap got there she stated “we were taking a shower at my dad’s home”. She stated “me and my sister” when asked who was in the shower. [X] told Police her dad was washing her.
She further told Police:
•“He said you want some soap:
•“I said yes”
•“Then he just throw it on my legs”
•“That soap, when the water was coming down from my head, some was going down and some was going up” while gesturing towards her genital region upwards with her hands.
•When asked when the shower occurred, [X] confidently stated “Friday”. [X] was however unable to tell Police the current day of the week.
A copy of the hospital notes was tendered, that appeared to suggest that X was not suffering from a urinary tract infection (UTI). The mother produced notes from the emergency department from 11.56 pm on 14 May 2023 relating to suspected sexual abuse.
The mother produced an email from the father from 6:14 pm on 14 May 2023, in which the father said:
I am not surprised, if you have shown your true self again. You have done religious blasphemy, by Insulting Holy Bible by taking Oath to take 3rd Fake DVO. You can go that low level to Insult the Holy Bible, anything can be expected from you.
In terms of [X], I don’t like blaming, but she tells me that they hardly shower more than twice (as you are too busy) and some days they go to bed in school uniforms.
It’s not long ago, when the kids were with me, last time, I gave them treatment for headlice, because both girls’ heads were infested with head lice.
The hospital notes (Exhibit C1) record a history from the patient without the mother as:
Went home on Friday (2 days ago) with Dad. Reports dad often showers her with sister sometimes. During shower 2 days ago, asked for soap dad has been douching her genitalia with soap 6 times (makes gesture of how he washes her), soaping her legs over 10 times each leg.
The notes did not appear to be a verbatim recital of X’s description. They went on to record X reporting pain on passing urine, and having difficulty passing urine overnight. X continued to report pain in the groin area. X denied that the father had put a finger inside her when he showered her, describing that he had showered her the previous day but not that day.
The history recorded as taken from the mother was of vaginal pain, lower urinary symptoms and the father douching X during the shower. She asserted an incident where the father’s brother had touched X’s vagina over the weekend.
The mother explained that she had further contact from the Police that morning arranging for the mother to attend the police station for interviews to take place with the children.
The mother says that she is gravely concerned about X’s safety and wants her to have no time with the father pending the resolution of the police in investigations. In her supplementary affidavit the mother asserted that she had no further information from X, (as at 12.01 pm on 15 May 2023) and that she had not asked X any further questions.
When the matter returned to the court on 18 May 2023, both the CYPS and AFP court liaison officers were present. Each advised that no further action was proposed to be taken which included, on the part of the AFP, that no charge would be laid.
Australian Federal Police records were produced to the court by the liaison officer, which included notes of the interviews that took place on 15 May 2023.
The synopsis of the interview with Y was in the following terms:
Why did you come to speak with Police today?
•My sister going to talk She got sick from Dad’s home
•Mum told [X] got sick Dad called [Mr Kabir]
•It was Friday she got sick Strawberry medicine
•My sister drink it and drink water
Who was at your Dad’s house?
•Just my Dad
---- Break for toilet ----
•We went in car, for drive
•Buy a present for me and my sister, silly balloon Came home
•My sister went to toilet
•Did the bath
•Tummy still hurting Night time did the bath
•Told me tummy sore He put cream on her leg. (Indicated knee)
•Got medicine from [U Shopping Centre] Went to mums home
•Tummy still hurting
•Then Police came
•[Mr R] (Dads brother) was there he was touching my sister body and he ran away (clarified on her back) was uncertain when she saw him.
•Dad’s brother.
The synopsis of the interview with X was as follows:
Why have you come to speak with police?
•I don’t know, mum knows
Tell me what happened on the weekend?
•We stayed at home and watched TV, Mario
•We went to the park near my old house
•We went to the zoo
•We had dinner
•We had a shower
Tell me about the shower
•Only me and [Y] were in the shower
•I showered with my dad
•My dad wasn’t in the shower
•Only my sister was in the shower with me
•Dad washed me and [Y]
•I got sick from dad’s house because I do not have a jacket
•[Y] got sick because she had no jacket
•Nothing else happened in the shower
(Felt happy about the shower pointed to picture of a happy girl)
•My sister was grumpy, she didn’t want a shower.
The records then indicated, as far as the AFP were concerned, a lack of material to consider that an offence had been committed, or a basis to interview the father. The matter was recorded as finalised.
Suspension of time with the father
On 15 May 2023, pending obtaining further information the father’s time with the children per the orders of 27 May 2022 was suspended.
Since then the mother has obtained ex parte interim protection orders against the father and his brother, which are structured by the Magistrates Court as being subject to orders made by this court.
The mother’s applications for those orders were tendered by the father on 30 May 2023. This included, in part, a description that X’s complaint to the mother on 14 May 2023 was that the father and uncle were rubbing X’s groin with soap many times and it had hurt her.
Further, trial dates have been allocated for a four day period commencing on 28 August 2023.
The key issue between the parties is as to the suspension of the time with the father pending the final hearing. The father seeks that the suspension be lifted. He is supported in that by the ICL. The mother seeks that the suspension be maintained.
Principles
The issue of whether suspension of the father’s time continues is an issue as to the appropriate parenting orders pending trial.
The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of each child. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence. Further, where applicable, s 65DAA sets out a reasoning pathway to be followed.
In this case, the key considerations were those of risk of harm to Y and X, the opportunity to secure the benefits of meaningful relationship through regular time with the father and any risks associated with the ongoing suspension of their time with the father.
Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah,[1] where it was observed that “it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial.”[2] Reflecting the earlier case of Goode & Goode,[3] it was accepted that the court in interim proceedings should not be drawn into:
68. …issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...
[1] Salah & Salah [2016] FamCAFC 100.
[2] Salah & Salah [2016] FamCAFC 100 at [36].
[3] Goode & Goode (2006) FLC 93-286.
Importantly, however, it was accepted, as identified in Eaby & Speelman,[4] that such an approach “does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”[5]
[4] Eaby & Speelman (2015) FLC 93-654.
[5] Eaby & Speelman (2015) FLC 93-654 at [18].
That is, the court, despite the limitations on testing the evidence, and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS v AH,[6] identified:
100. …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.[7]
[6] SS v AH [2010] FamCAFC 13.
[7] SS v AH [2010] FamCAFC 13 at [100].
Given that the key issue raised to justify the departure from the current orders is that of risk, it is important to recognise the nature of the court’s function in assessing such, even in the context of the limitations imposed by the interim nature of the proceedings. In Isles & Nelissen,[8] the approach to risk was adopted (at [50]) from Fitzwater[9] as:
138. … a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.[10]
[8] Isles & Nelissen [2022] FedCFamC1A 97.
[9] Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251.
[10] Isles & Nelissen [2022] FedCFamC1A 97 at [138].
It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. For example, in a case such as this where one issue is that of risk of sexual abuse, the court accepted from Fitzwater that:
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
The limitations inherent to interim proceedings necessarily form a part of the consideration of risk.
Discussion
Here the central risk was identified as being of sexual abuse. That was a risk said to be inferred from the evidence as to what has passed in the days surrounding the first listed day of the trial, 15 May 2023. It is a risk to be considered against a more general background of disruptive arrangements for the children spending time with the parents since separation and a risk of disruption of the relationships between the children and the father.
Even without an assessment of the issues as to matters that may undermine the credibility of the mother’s evidence, including potential inconsistencies in her accounts, the comments that she, and third parties, have attributed to X, require significant stretching to give any significant support to a notion that the father may have abused X. Even bearing in mind the difficulties with fact finding in interim proceedings, and the need to avoid being drawn into controversial findings of fact, the current state of the evidence does not point to risk to an extent that warrants weight sufficient to justify the ongoing suspension pending the trial, a suspension that would remove the father from the children’s lives, and deprive them of the benefits that the current orders were designed to support.
The fact that X indicated pain in the groin or genital region, even that “rubbing” may have been described, in the context of normal care arrangements and X’s description of showering to the police, risk is not sufficiently cogently indicated to suspend the substantial and significant time with the father.
Further, at least on an interim basis, there is scant reason to consider Mr R is a risk, there being reasonably corroborative material suggesting that he was not present.
Despite the seriousness of an issue of sexual abuse of children, as presently understood the factual matters advanced by the mother do not sufficiently indicate risk of sexual harm by either the father or Mr R, to a degree that justifies placing any significant weight upon the concerns raised by the mother. Accepting that the commission of an act of indecency upon a child is a highly significant matter that goes to risk of harm and the assessment of the best interests of a child, the evidence does not sufficiently indicate such, even at this interim stage, particularly noting the apparently comprehensive gathering and presentation of evidence from various sources about the alleged incident.
Weighing the probabilities of the competing claims means that despite the seriousness of the issue raised by the mother, ongoing suspension is not warranted. Rather, ongoing suspension would act as a lengthy impediment to the relationship between the father and children, placing at risk their relationship.
CONCLUSION
The order suspending the father’s time with the children will be discharged.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 30 May 2023
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