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
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…
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- AGLC
- Kabir & Kabir (No 4) [2023] FedCFamC1F 440
- Case
- [2023] FedCFamC1F 440
- Decision Date
CaseChat Overview and Summary
The case of Kabir & Kabir (No 4) was heard in a Family Court in Australia, where the primary issue was the interim suspension of the father's time with his children. The matter was brought before the court due to allegations of potential sexual abuse by the father and his brother against one of the children, X. These allegations arose from a conversation between the child and the mother, who claimed that X had pointed to her groin area and repeatedly stated that it was painful. The father, in contrast, provided evidence that antibiotics had been prescribed for the child due to hygiene issues and abdominal pain. The court was tasked with deciding whether the allegations were credible and whether the suspension of the father's time with the children should be continued or lifted.
The court carefully considered the evidence presented by both parties, including hospital records and affidavits from the father, the child, and the mother. The judge noted the seriousness of the allegations but also highlighted the potential harm that continued suspension could cause to the father-child relationship. The court found that while the allegations were serious, the evidence did not sufficiently support the mother's claims to warrant ongoing suspension. The court concluded that the suspension should be discharged to allow the father to maintain a relationship with his children, while also acknowledging the need for ongoing monitoring and investigation into the allegations.
In light of the evidence and the considerations of the best interests of the children, the court determined that the suspension of the father’s time with the children would be discharged. This decision allowed the father to resume his time with the children, subject to certain conditions that aimed to ensure the safety and well-being of the child. The court also ordered that the matter continue to be monitored by relevant authorities to address the allegations of abuse thoroughly.
The court carefully considered the evidence presented by both parties, including hospital records and affidavits from the father, the child, and the mother. The judge noted the seriousness of the allegations but also highlighted the potential harm that continued suspension could cause to the father-child relationship. The court found that while the allegations were serious, the evidence did not sufficiently support the mother's claims to warrant ongoing suspension. The court concluded that the suspension should be discharged to allow the father to maintain a relationship with his children, while also acknowledging the need for ongoing monitoring and investigation into the allegations.
In light of the evidence and the considerations of the best interests of the children, the court determined that the suspension of the father’s time with the children would be discharged. This decision allowed the father to resume his time with the children, subject to certain conditions that aimed to ensure the safety and well-being of the child. The court also ordered that the matter continue to be monitored by relevant authorities to address the allegations of abuse thoroughly.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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