Kabir & Kabir (No 6) - [2023] FedCFamC1F 883

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kabir & Kabir (No 6) [2023] FedCFamC1F 883

File number(s): CAC 2337 of 2019

Judgment of: GILL J

Date of judgment: 19 October 2023

Catchwords: FAMILY LAW – CHILDREN – Best interests – Primary considerations – Assessment of risk – Where the mother is self-represented and unable to cross-examine the father – Where there are allegations of family violence by both parents against each other – Impact of the conflict between the parents on the children – Where significant non-compliance with handover orders has previously been found – Where there are allegations of sexual abuse of the children by the father – Where the father does not pose an unacceptable risk – Where there are allegations of physical and emotional abuse and neglect of the children by the mother – Where the mother does not pose an unacceptable risk - Where the parents each hold a poor view of the other as a parent – Where the mother seeks to relocate to Sydney for work – Relevance of significant non-compliance and a high degree of acrimony between the parents to relocation – International travel

Legislation: Family Law Act 1975 – ss 60B, 60CA, 60CC, 65DAA, 65DAC and 102NA

Cases cited:
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101

Isles & Nellisen [2022] (2022) FLC 94-092; FedCFamC1A 97

M v M (1988) 166 CLR 69

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Phillips & Hansford (2019) 60 Fam LR 160

Taylor and Barker (2007) FLC 93-345

Division: Division 1 First Instance

Number of paragraphs: 264

Date of hearing: 28-31 August & 27-29 September 2023

Place: Canberra

Counsel for the Applicant: Mr Alexander

Solicitor for the Applicant: JS Family Lawyers

Solicitor for the Respondent: Litigant in Person

Counsel 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:

19 OCTOBER 2023

THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for medical and educational issues concerning the children X, born 2017, and Y, born 2018 (collectively ‘the children’), but before she makes a 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 he may have on the decision to be made;
(c)Take into account any views expressed by the father; and
(d)Advise the father of her decision as soon as practicable, and within 7 days of the making of such a decision.

2.The parties shall otherwise have equal shared parental responsibility in relation to other long-term issues concerning the children, including religious and cultural issues.
3.The children shall live with the mother.
4.The mother is restrained from relocating the residence of the children from the City E region.
5.Unless otherwise agreed in writing the children shall spend time with the father during school term time each alternate week from the conclusion of school or if not a school day 3.00 pm, on Thursday to the commencement of school or if not a school day, 9.00 am the following Tuesday, with such weekend time to reset each term so as to commence on the first Thursday of each term.

School holidays
6.For the avoidance of doubt the school holidays commence at 3:00 pm on the last day requiring attendance of the children at school and conclude at 9:00 am on the first day requiring the children to attend school in the following term.
7.Unless otherwise agreed in writing, the children shall spend time with each parent during the term school holidays on the following basis:
(a)With the father:
(i)From the conclusion of school or 3:00 pm on the last day requiring attendance at school to 3:00 pm on the middle Saturday of the school holiday period in odd numbered years;
(ii)From 3:00 pm on the middle Saturday of the school holiday period to the commencement of school or 9:00 am the following term in even numbered years.

(b)With the mother:
(i)From the conclusion of school or 3:00 pm on the last day requiring attendance to 3:00 pm on the middle Saturday of the school holiday period in even numbered years;
(ii)From 3:00 pm on the middle Saturday of the school holiday period to the commencement of school the following term in odd numbered years.

8.Unless otherwise agreed in writing, the children shall spend time with each parent during the end of year school holidays on the following basis:
(a)For half of each school holiday period on a week-about basis with the children spending time with each parent as follows:
(i)In odd numbered years: with the father in each odd numbered week, with the weeks to start in accordance with order (6) and otherwise with the mother;
(ii)In even numbered years: with the mother in each odd numbered week, with the weeks to start in accordance with order (6) and otherwise with the father.

9.Notation – the terms of the above order mean that if, for example, the school holidays commence on a Wednesday, then each week runs from Wednesday to Wednesday.

Special occasions
10.Subject to the parties agreeing otherwise in writing and notwithstanding any other order the children shall spend time with each of the parents as follows:
(a)Both children shall spend time on their birthdays with the parent whom is not otherwise caring for them that day pursuant to these orders from the conclusion of school to 7:00 pm on a school day and from 10:00 am to 2:00 pm on a non-school day with changeover to be at G Retail.
(b)With the mother from 5:00 pm the day before Mother’s Day to the commencement of the school on the day following Mother’s Day.
(c)With the father from 5:00 pm the day before Father’s Day to the commencement of school on the day following Father’s Day.
(d)During the Eid al-Adha period as celebrated in Australia, from school or 5.00 pm if not a school day the day prior, until school, or if not a school day 9.00 am the day after:
(i)With the mother in even numbered years; and
(ii)With the father in odd numbered years.

(e)During the Eid al-Fitr period as celebrated in Australia, from school or 5.00 pm if not a school day the day prior, until school, or if not a school day 9.00 am the day after:
(i)With the father in even numbered years; and,
(ii)With the mother in odd numbered years.

Changeover
11.Unless otherwise agreed in writing, changeovers are to be effected as follows:
(a)Where changeover occurs on a school day and the child is at school, then to or from school;
(b)Where changeover occurs otherwise than in accordance with the previous order, then at G Retail.

Communication
12.The children shall communicate by facetime/skype/equivalent each Sunday at 5:00 pm with the parent providing care for the children to facilitate the call to the other parent.
13.The parents will communicate with each other regarding the children in writing except in cases of emergency.

Authorities and exchanges of information
14.These orders act as authority for any daycare, preschool and school the children will attend from time to time to provide both parents with copies of all information including reports, newsletters, excursion forms and notices ordinarily provided to parents of students.
15.Each parent will notify the other as soon as practical via telephone of any serious injury or illness suffered by the children in their care, and the name and contact details of any treating medical professional.
16.Unless otherwise agreed in writing, absent illness requiring hospitalisation, the children shall spend time with each parent in accordance with these orders and with the appropriate exchange of information about the symptom, treatment and medication to treat any illness being experienced by one or both of the children, being provided to the other parent.
17.Each parent notify the other of the name and contact details of any general practitioner, paediatrician, optometrist or other medical professionals and/or specialist who treats the children while the children are in that parent’s care.
18.These orders act as authority for any medical practitioner who treats the children from time to time to provide both parents with information about the children’s diagnosis, treatment and future prognosis.
19.Each parent is to advise the other parent of their mobile telephone number and residential address within 48 hours of the making of these orders and to advise of any change to address or mobile telephone number within 48 hours of such change occurring.

Agreement in writing
20.The parents are at liberty to vary by agreement the arrangements for the children to spend time with each of them, and as to the frequency and manner of communication between the children and each parent and as to the handover arrangements, provided such agreement is evidenced in writing.

Restraints
21.The parties are restrained by injunction from:
(a)Physically disciplining the children; or
(b)Denigrating the other parent or members of their family in the presence or hearing of either of the children.

Family Law Watchlist
22.Mr Kabir and Ms Kabir, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children, X born 2017 and Y born 2018, from the Commonwealth of Australia until they are 18 years of age.
23.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.

Contraventions
24.The Contravention Applications filed on 2 February 2022, 22 March 2022 and 20 March 2023 are referred to the Contravention Team for listing.
25.The listing of the contraventions are to be for a full day of hearing before a different judicial officer.
26.And it is noted that an interpreter may be required for the hearing of the contraventions.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
Introduction

These proceedings concern the parenting arrangements for the two children of the relationship, X, born in 2017, and Y, born in 2018.
The applicant father is Mr Kabir, born in 1978, and the respondent mother is Ms Kabir, born in 1989. The parties were married in 2015 in Country Z, their relationship ending in Australia some time in 2019.
The relationship, and the post separation dealings between the parties are characterised by a high degree of acrimony, are replete with allegations and counter allegations of family violence, abuse and neglect of the children, whilst the post separation arrangements for the children have been characterised by disruption and competing allegations as to the parents’ compliance with the court ordered regime.
A significant number of the contravention allegations have been resolved in a manner that attributes fault for the non-compliance as resting with each of the parties on different occasions. A significant number of contravention allegations are as yet unresolved.
Key to the resolution of what parenting arrangement is in the best interests of the children is the resolution of the issues of family violence, abuse and neglect of the children, the protection of the children from such, the assessment of the capacity of each of the parents to care for the children, the benefits of relationship with each of the parents, and the assessment of future compliance with court orders.
Limitations impacting the trial.
Each of the parties speaks English as their second language. An interpreter was made available and occasional use was made of the interpreter.
At the commencement of the trial the mother lost her legal representation. Her then lawyers, who were the eighth firm instructed by the mother sought and were refused permission to withdraw. After a short adjournment the mother indicated that, following an exchange with her lawyers, she no longer wanted them to conduct her case and, on the basis that their retainer was terminated, they were given permission to withdraw.
This had the consequential effect of depriving the mother of the ability to test the father’s evidence by cross-examination due to the limitations imposed by s 102NA of the Family Law Act 1975 (the ‘Act’).
The mother sought to continue the trial but limited to the issues in the case related to her proposed relocation with the children and international travel. Given the entanglement of these issues with the overall case, this was refused, and the mother then sought to continue with the hearing of the matter.
The trial was conducted without legal representation for the mother, and without the mother cross-examining the father. The Independent Children’s Lawyer (the ‘ICL’) then took significant responsibility for testing the father by cross examination.
Positions of the parties
The precise orders pursued by the parties are set out in an annexure to this judgment.
In summary, the father pursues a result whereby the children live with him and spend no time with the mother. He seeks sole parental responsibility.
The mother seeks that the children live with her, and that she exercise sole parental responsibility in relation to education and medical matters, otherwise sharing parental responsibility. She seeks to relocate with the children to Suburb W, and for the children to spend two to three weekends per term with the father and increasing amounts of school holiday time with him. This ultimate position represented a decrease from her orders sought at the commencement of the trial, where she proposed that the children spend each second weekend during term time with the father. The mother accepted orally that if not permitted to move to Suburb W a 9/5 split in her favour would be her preferred arrangement.
The ICL supports the mother’s proposed move to Suburb W with the children. The position ultimately adopted by the mother reflected that of the ICL in terms of pattern of time with the father.
PRINCIPLES
The paramount consideration in determining what order should be made is, pursuant to s 60CA of 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.
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. In Phillips & Hansford (2019) 60 Fam LR 160, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”. Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
In Marsden & Winch (No 3) [2007] FamCA 1364, Warnick and Thackray JJ observed in relation to both the interplay between the considerations, that a primary judge is:
… of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.[1]
[1] Marsden & Winch (No 3) [2007] FamCA 1364 at [78].
However, they also noted that:
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.[2]
[2] Marsden & Winch (No 3) [2007] FamCA 1364 at [77].
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright (2007) 37 Fam LR 518, frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
In this case it is the primary considerations that are the dominant matters raised by the parties. Each party mounts a case that points to limitations in the benefits of meaningful relationship for the children with the other parent. Each presents a case that is suggestive that the other parent presents risk to the children, by neglect, or abuse, or by reason of potential exposure to family violence.
Each parent alleges that the other has perpetrated family violence both upon the children and that parent. Each alleges that the other is undermining of the relationship between the children and that parent.
Central to the resolution of those issues is the consideration of the risks for the children that accompany each of the parents.
As identified in the Full Court case of Isles & Nellisen [2022] FedCFamC1A 97 at [138] the consideration of risk “is 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.”

Here, not unusually, factual findings about past events take place in the context of contested facts, where the parties are in dispute as to what has happened both between them and to the children, and accordingly where there may be uncertainty as to what has gone on.
The Full Court identified that, depending upon the evidence before the Court, a risk of future abuse may be established by the possibility of past abuse, a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M (1988) 166 CLR 69.
Such an understanding was recently further confirmed by the Full Court in Eastley & Eastley [2022] FedCFamC1A 101 (at [18]):
…the assertion the primary judge was obliged by law to settle certain nominated factual controversies is rejected. The parties’ evidence revealed a multitude of factual discrepancies, many of which were specifically addressed by the primary judge in the reasons for judgment, some without any positive or negative finding being made. Importantly though, the primary judge was not required by law to definitively resolve even the pivotal factual disputes when assessing the risk of harm within the wider context of the discretionary determination of the particular orders which would best promote the children’s interests.
Further, in the same manner (at [31]):
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred ... However, the primary judge’s enduring suspicion the incident might have occurred ...was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
Finally, in that same case the Full Court observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
This understanding of risk analysis is central to the determination of this case where emphasis was placed upon the risk posed to each of the children by each of the parents.
In this case there an issue also arises as to where the children would live, the mother proposing that she would live in Sydney with the children.
While there is no separate category of relocation cases, cases involving a proposal that a party will move with a child pose hard questions with difficult consequences. Often a move will be of great importance to the party who wishes to move. Often the moving party will be the parent who has the primary care of the child. Often a move will result in fundamental changes in the way in which a left behind parent may be involved in a child’s life. The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements” (Taylor and Barker (2007) FLC 93-345).
THE EVIDENCE
The evidence led by the parties spanned from their marriage in Country Z prior to the mother’s move to Australia, their living together in Tasmania, move to Queensland and separation there, followed by the resumption of their relationship and move to City E. Shortly thereafter, in late 2019 they finally separated and so much of the remaining evidence related to post separation events.
Significant caution is called for before reliance is placed on evidence given by either of the parties which is not adequately supported by other evidence. The reasons for this are set out later in the judgment, but stem to a significant degree from findings made in previous contravention proceedings taken by the father against the mother that demonstrated that each was disingenuous in their evidence as to the contraventions, but that the father, who prosecuted claims for non-compliance on the part of the mother when he had in fact not attended, had cynically and manipulatively used the court system against the mother.
Before the mother’s move to Australia
The parties, both health professionals from Country Z, married in Country Z following a marriage arranged through a marriage broker, in 2015.
The following day, the father signed a form with the Department of Immigration and Border Protection to sponsor the mother to migrate to Australia on a partner visa. On the form, the father listed the mother’s address as living in City BB, Country Z, being the same address as his family. The father also stated on the form that he had previously not been in any de facto relationship.
The father, who had been living and working in Australia prior to the marriage, returned to Australia in late 2015.
The father asserts that until the mother moved to Australia in early 2018, following the successful application for a spouse-based visa, the parties were together for only about two months. The father further asserts that there were delays in obtaining the visa due to the mother lying in her application interview.
The mother lodged her application for a partner visa in early 2016 and participated in an interview with the Australian High Commission in City TT in mid-2016. During the interview, the mother stated that she had been living with the husband’s family since the date of their marriage. In a letter from the Australian High Commission dated mid-2016, the Visa Case Officer found that this statement was misleading information.
The mother also stated that the father had never been in any previous relationship and that he returned to Australia in late 2015, which were also found to be misleading information. The father alleges that the misleading information she provided goes to her credibility.
When questioned about the interview, the mother stated that she was living between the homes of her family and the husband’s family due to her work as a health professional in the defence forces and did not recall where she was living on the day of the interview. She also stated that at the time of the interview she was not aware that the father had previously been engaged to another woman.
It was also put to the mother that she had to withdraw her visa application due to the misleading information she provided, which ultimately delayed her arrival to Australia. When put to her in questioning, the mother asserted that the initial visa application was rejected because the father submitted incorrect supporting documentation.
Even accepting that the High Commission rejected a number of the mother’s assertions, no clear conclusions as to the mother’s credibility are available in relation to the visa process.
X was born in Country Z in 2017. The father alleges that prior to X’s birth the mother said to him that she wanted to be dead. The mother alleges that the father ceased to financially support her once he discovered that she was carrying a girl, leaving it to the mother and her family to meet the mother’s expenses and the expenses of birth.
Transfers of sums of money from the father to the mother took place in June, September and October 2016, and then in January 2017. The next transfer appears to be in October 2017, when the mother said that she did not need financial support as she was working. The mother says that when she sought financial support in 2017, prior to X’s birth in 2017, support was not forthcoming.
The mother further alleges that while she was in Country Z the father refused to pay expenses such as for X’s vaccinations, or for X’s visa.
The mother says that between July and September 2017 the father ceased communicating with her at all and she thought that the relationship was over. The mother received her Partner Visa, Stage 1 at this stage, which was confirmed by text message from the father. The mother says that she told the father that the relationship was over and that they could no longer live together. She says that the father contacted her, promising to be good to her and asking that the relationship continue. She decided to relocate to Australia.
The mother says that the father travelled to Country Z in late 2017, but demonstrated a poor attitude to X, whilst also asserting that he could take X from the mother.
The father produced a number of text messages said to negative these assertions by the mother.
Exhibit ICL 24 contained messages purportedly between the parties in April 2017, including affectionate emojis. No identifying phone numbers were present, and the mother said that the communication had definitely not occurred.
Exhibit ICL 22 contained messages purportedly from 2017. It was suggested to the mother that in that message the father and mother had communicated regarding the expense and availability of hospital care. The messages were absent identifying phone numbers. The mother said that she could not recall the messages but accepted that such a communication may have occurred.
Exhibit ICL 23 contains screenshots of messages, where it was suggested to the mother that the father had said that the mother had made him a “proud father.” The mother observed that whilst her name is recorded at the top of the screen, neither the sending nor the receiving numbers are displayed. She asserted that the message was not credible, and in response to questioning from the ICL, categorically denied that such a communication had taken place.
Exhibit ICL 26 contained undated text messages purportedly between the parents, concerning vaccines, and not wasting money. The mother denied that such a communication had taken place.
Exhibit ICL 25 contained undated text messages purportedly between the parents, concerning money, and the mother’s reluctance to take money from the father’s family. The mother denied that such a communication had taken place.
The messages produced by the father were not supported by him in his evidence. He failed to establish that the messages were sent.
However, on the evidence as a whole I am unable to conclude that the father either rejected X, or that he failed to provide support for the mother and X.
Tasmania
Following the mother’s move to Australia in 2018 the parties initially lived together in Tasmania. The parties gave diametrically opposed descriptions of their life together. The father’s description was of erratic and neglectful behaviour by the mother, despite significant support by the father and their friends. The mother’s description was of abuse, family violence and a lack of support by the father. The father asserts that during this time he worked part‑time, 20 hours per week, to enable him to be available to look after the child(ren). The mother alleges that the father was working full-time with night and weekend shifts, as well as undertaking research work, so he did not assist her with housework or caring for the children.[3]
[3] Affidavit of the mother filed 28 June 23 [35].
A friend of the father’s, Ms CC, says that she spoke with the mother in 2018, and that the mother described that she was happy that the father was taking good care of herself and X. Ms CC further described that throughout the pregnancy she offered to help the mother, who declined on the basis that the father was taking care of everything.
The father alleges that in May 2018 the mother called him and said that she was leaving the house and X alone. He said that he arrived home to find X on her own. The mother denied this.
The father alleges that in 2018 the mother threatened to stand in the middle of the road and to kill herself if she could not return to Country Z. The mother denies this.
Mr DD, who described himself as a friend of the mother as well as the father from their time in Tasmania, describes an incident in 2018 where he and his wife Ms EE went to the home following a call from the father, about an argument between himself and the mother (then pregnant). Following arrival, the mother appeared upset and said that she wanted to go back to Country Z. The father asserted that the mother had threatened suicide if she did not go to Country Z, and that the mother had not eaten or drunk anything all day. Mr DD and Ms EE described that the mother said that the father had to send her to Country Z or “things will go really bad.” He said that the mother locked herself in her room.
Later that night Mr DD received a call from the father saying that the mother had left the house. She returned some hours later.
Mr DD, who is a health professional, as is Ms EE, expressed concerns in relation to the mother’s mental health, noting the mother’s apparent unwillingness to reconcile with the father, her apparent attempt to overdose, and impulsive behaviour. Noting a lack of any process of assessment of the mother, this expression of concern should not be given weight.
The caesarean
The apex events in relation to the parties’ time in Tasmania surrounded the birth of Y in 2018.
The father alleges that the mother was aggressive, slapping X’s face, and throwing things. The mother asserts that she felt unwell, dropped dishes, lay down and subsequently tried to call the ambulance.
The mother alleges that the father assaulted her taking her telephone and throwing it, then squeezing her with both hands, saying “I want to kill you” whilst holding the telephone between his neck and shoulder. She says that he pushed her to the floor, kicking her and dragging her. She says that she could hear his family members on the telephone, and that they were encouraging him to attack her.
The mother says that she had labour pains, could not balance, and that the father removed her hijab and stomped on it, then dragging her by the hair and kicking her again. She says that X saw this happen.
The mother says that a number of the father’s friends arrived, and that they took his side.
The father denied that he assaulted the mother.
He said that the mother took some tablets and said that she wanted to kill herself. He says that his friends drove her to the hospital, and that she had a follow up appointment two days later.
Mr DD described receiving a telephone call from the father in 2018, where he said that the mother had overdosed on medicine and was refusing to attend hospital. He and his wife, Ms EE, then attended the home.
Both Mr DD and Ms EE said that it was unclear what pills had been taken by the mother, there being vitamin pills and Panadol sheets. It was put to Mr DD that this was untrue, which he denied. Ms EE said that it was not clear to her whether the mother had overdosed or that she was dramatising the situation. Ms EE said that both the father and mother described it to her as an overdose. Neither Mr DD nor Ms EE considered that, at that stage, there was an emergency.
Prior to taking her to hospital, Mr DD described that the mother said to him that she had overdosed, was very angry and did not want to live anymore. The mother put to Mr DD that she told him that the father assaulted her. Mr DD denied that the mother had said this.
Ms EE described that, at about 9 or 10 pm she and her husband drove the mother to hospital. Ms EE described that the mother appeared to be angry and upset, but did not say why she was angry with the father. They accepted that they left the mother at the clinic that evening, and that the mother would have had to make her own way home. Ms EE said that the mother assured her that she did not need to wait. The mother returned home that evening.
The father says that he was at work at 8 am on a date in late 2018, leaving work for the airport where he flew out at 4.40 pm, arriving back at 4.10 pm the next day and travelling to the clinic at the hospital that the mother was attending for a check-up. He says that the mother was admitted to hospital at 5.30 pm.
The mother says that she attended an antenatal clinic and would have had an emergency caesarean section but that she had just eaten. Instead, it was booked for the following morning.
In 2018 Y was born.
The mother has previously contended that she suffered a ruptured uterus that was caused by the father’s assault.
The attending surgeon for the caesarean section by which Y was born, Dr FF, a specialist in gynaecology and obstetrics, was called on subpoena to give evidence about Y’s birth.
The significance of Dr FF’s evidence was as to the mother’s claim that she was admitted on an emergency basis for the caesarean section by reason of a rupture to her uterus. The key issue in relation to this was the description in the surgical notes “scar dehiscence present, membranes were bulging through dehiscence”. While Dr FF accepted that there is inconsistent use of the description of “rupture of the uterus”, which may be used in respect of such a dehiscence (meaning a thinning of the uterine wall, at times being a sequelae to a previous caesarean section), for himself and obstetricians generally he asserted that the use of the term was confined to circumstances of a rupture of the uterus such that parts of a foetus are protruding from the uterus. It is not a description that he would use for the mother’s condition.
Further, while Dr FF accepted that while the descriptor “emergency” could be applied to the mother’s operation, that was on the basis that the mother was close to full term, there was a planned caesarean section, labour had commenced and so the caesarean was performed in advance of the scheduled time. This contrasted somewhat with his description of the circumstances of what he would describe as a rupture of the uterus, which he said would be accompanied by considerable pain and bleeding and would be treated as a medical emergency that presented a significant threat to the mother as well as to the baby, with symptoms more prominent than the dehiscence.
In her oral evidence the mother said that she did not interact with Dr FF, but that another medical officer had said to her that if they waited to have the caesarean section disaster could happen, and that another medical officer had described a ruptured uterus.
It should be observed that when the father initially tendered the hospital records to the court, in an interlocutory phase of the proceedings, he selectively produced the section that referred to the surgery as elective. He did not produce a further reference to the surgery as emergency.
Given Dr FF’s evidence, to the extent that the mother’s assertion that her presentation and caesarean section were in connection with a medical emergency, her claim is not made out. Similarly, the claim made by the mother that her presentation was a consequence of an assault perpetrated by the father is also unsupported by her presentation at the hospital. This is not the same as saying that the mother’s presentation at the hospital is inconsistent with a history of assault, but rather no evidence indicated that her presentation was supportive of the claim.
The mother asserts that she told her brother about this incident shortly after. She did not call him to give evidence of such. Aside from this the mother accepted that she did not raise this incident, including with the police in Queensland when making a complaint about the husband, until after the father removed the children in late 2019.

When asked how many times assault had occurred in Tasmania, the mother identified this as the only occasion, and then asserted that there were maybe one or two more, although she did not recall the dates.
While it was suggested that if the assault had occurred the mother would have exhibited bruising, no relevant expert evidence was tendered to support such a contention.
Connected to the mother’s allegations of violence, Ms EE described that having seen the mother upset on a number of occasions while she was living in City GG, she decided to make sure that the mother was safe and asked her whether the father had ever hit her. The mother denied that the father had ever lifted a hand to her.
On balance I do not accept the mother’s description that the father assaulted her. The father’s description of the surrounding circumstances is supported by both Mr DD and Ms EE, who also report the mother’s description that she had overdosed, that further supported (to a limited degree only) the father’s contentions as to the mother’s conduct. Further, the evidence of Mr DD negatived the mother’s assertion that she had told him that the father had assaulted her and said that he wanted to harm her. It should be observed that Mr DD and Ms EE considered, in the light of the mother’s presentation on various occasions, that she should be asked if the father had hurt her. They described a negative response. There is good reason to accept their descriptions of the mother’s comments and volatile presentation.
To the extent that the mother previously relied upon the notion that the ruptured uterus was caused by an assault by the father, even if it is accepted that a medical officer described a rupture to her, the mother has provided no evidence of being told that there was such a connection. The mother has not explained the basis upon which such a contention was tenable, even from her own understanding as a doctor. That is, there was no justification for the mother’s contention of a relationship between her understanding of a ruptured uterus and the purported assault.
Other incidents in Tasmania
Further in relation to their time in City GG, the father asserts that the mother struck X in 2019. I am unable to conclude that this is so.
The father asserts an incident in early 2019 where he says that the mother went missing and was returned by the police. He produced no police record, although Mr DD says that he attended at the request of the father, at a point when the parties were preparing to move to Brisbane. He says that at about 10.30 or 11 pm he saw the mother leave the home with a large bag. The father told Mr DD that the mother had broken things, and that after the police delivered the mother back home, she said that she was angry at the father and so she damaged the things, and that she further said, when asked to think of the children that “the kids will grow like any other kids who don’t have their mother.”
The exchange with Mr DD gives credence to the notion that the mother was acting in an erratic manner that evening.
The mother says that the parties decided to separate under the one roof in January 2019. The father disputes this, asserting that in January 2019, they together attended a gallery in City GG with the children, and a short time later attended the baby shower of a friend together.
Ms CC also attended on the evening in January 2019. Her evidence did not add to the picture, as it featured what appeared to be unfair criticisms of the mother.
What can be taken from the Tasmanian incidents is that the mother behaved in an erratic manner at times. Her claims in relation to the father being violent have not been established, and her claim in relation to the ruptured uterus as evidencing such was without justification.
Queensland incidents
The parties moved to Queensland in 2019, for the father to commence employment.
The mother asserts that there were a few incidents of assault in Queensland. She said that she could not identify the dates.
The father alleges that in April 2019 the mother texted him to say that she was leaving the home, the doors were open and she was not taking responsibility for anything. Such messaging was contained at Exhibit F8. In response to questioning, the mother said that she could not see her name on the text, as the contact is named something other than Ms Kabir. This message is suggestive that the mother left the home, unlocked, and messaged the father to tell him so.
Further, the father alleges a series of incidents at the end of April 2019 where the mother threatened to kill herself, culminating with an ambulance being called. The mother accepted that she said that if they took her to the hospital, she would kill herself. She explained that she said it to escape the situation, as medical staff had threatened to take the children from her. The mother further explained that her English was poor and that she used the wrong words. The mother accepts that she was then hospitalised involuntarily.
However, to the extent that the mother’s mental health was raised as an issue, it was not established.
Exhibit ICL 3 is an extract from the Queensland Police records that contains an affidavit from a neighbour of the parents in April and May of 2019. She describes seeing a male standing over a female and berating her in late April 2019, and a further example of the male speaking aggressively into a telephone in May 2019. She described hearing yelling coming from a unit on the ground floor, hearing both male and female voices yelling, but more often a male voice. She identified that the people she had previously seen were spoken to by police in mid-2019 and identified them as the parents by that connection.
In a hospital record (Exhibit F 11) from mid-2019 the mother described that on that day she and the husband had an argument, and when she went to leave, he physically pulled her back into the house. She described this as being the first time that there has been a physical assault, and that she called the Queensland Police. The mother denied having been in possession of a knife, such a report having been made to the Queensland Police. The mother described the father as a “good father” and held no safety concerns for the children while they were with him.
The parties separated in 2019 in Queensland. This was when the Queensland Police took out an Apprehended Violence Order against the husband. During this time the husband would visit the home to spend time with the children, sometimes in the home, the mother describing that she would go upstairs when he came. Sometimes he would take the children out. He also provided some groceries.
One contentious area related to the mother’s claim that during this time in Queensland the father engaged in economic abuse of her, depriving her of adequate support. The father challenged this claim, pointing to the mother having in excess of $16,000 in an account under her control in September 2019, increasing to over $19,000 in October 2019. The mother asserted that these amounts were deposited when she was able to access Centrelink and special payments despite her visa status which she had considered preluded her from government support. She said that this followed her contact with a social worker when she was hospitalised. It was unclear when the mother was in receipt of the funds. The evidence was insufficient to establish that the father was engaged in economic abuse of the mother at this time.
The father contacted Mr DD and Ms EE, and also Ms CC, and asked them not to speak with the mother. He explained that he was concerned that the mother would make allegations against him. He was unable to recognise that this isolated the mother. Mr DD described that he cut off contact with the mother as he considered that she was making false allegations.
In late 2019 the parties attended the apprehended violence order proceedings. The mother asked for the proceedings to be withdrawn by the police who were the applicants. They declined to do so at that time. The parties then travelled to City E together.
In late 2019 and early 2020 Mr HH made two recommendations for the withdrawal of the proceedings for an apprehended violence order against the father. The recommendations (Exhibit F4) were based primarily on what were perceived to be inconsistencies. The proceedings were withdrawn.
Separation in City E
Despite their separation, the parties decided to move together to City E, arriving in late 2019 for the father to take up a work position in 2020.
The father alleges that in City JJ, during the trip to City E, the mother left the accommodation during the night, the father looking for her, and the mother returning later. The mother denied this.
The parties agree that an incident occurred when they were in the car with the children in the area of the KK Shopping Centre. The father asserts that the mother called him a number of abusive names in her native language. The mother denies that she did, alleging that the father called her by those same names.
They agree that the mother left the car. The father asserts that the mother jumped out of the car and ran away whilst he was in the car with the children. He says that he said to her that if she left then the relationship was over. The mother alleges that the father pushed her from the car and drove off with the children. The mother says that she was pushed out of the car despite everybody wearing seatbelts, a description that appeared somewhat unlikely.
The mother also appeared to describe a loss of consciousness when she asserted that she was pushed from the car, and that when she regained consciousness there were children crying and dust. She had also described however that the car was on the other side of the lake. When asked if she had hit her head she said that she did not know. The mother explained that it was not a loss of consciousness but rather a period of confusion and shock. The mother accepted that in an affidavit prepared on 6 December 2019 when describing this incident she made no description of a loss of consciousness, contending that grief can result in a loss of memory.
The mother attended the police and said to them that the father was supposed to pick her up at the shopping centre at Suburb F. She said that she communicated through a member of the local Muslim community who she knew, and that the father had sent her text messages arranging such a rendezvous. The mother said nothing about being pushed from the car, nor about loss of consciousness. Rather the police records indicate that the mother was dropped off at KK Shopping Centre by the father who did not return to collect her.
The father drove with the children to Sydney. When asked if Y was still breastfeeding at that point he said “not really” but that she was merely taking comfort from the breast. He did not tell the mother where he had gone. He denied blocking the mother’s calls, but accepted that he did not answer any of her calls. He said that the mother was notified by the police as to where he had gone with the children, after they contacted the father. At that point Y was aged one, X two. While he accepted that the sudden removal from the mother would have been difficult for them, he asserted that they adjusted well.
Whatever occurred on the mother leaving the car, this act of removal on the part of the father left the mother in an unfamiliar city and removed the children from her. It was a highhanded act that cannot be seen as child focussed and was abusive of the mother.
Commencement of proceedings
Parenting proceedings were commenced by the father on 14 November 2019. Interim consent orders were made by Judge Hughes on 25 November 2019 providing that the children live with the father and spend supervised time with the mother.
Arrangements were made for supervised time to occur. However, the mother said that her supervisor became unwell and unavailable and the visit did not take place. The father says that the mother declined to provide an undertaking from the supervisor as required.
On 11 December 2019, Judge Hughes made interim orders for the children to be returned to the mother. Further orders on 13 December 2019 provided for the mother to have sole parental responsibility for medical and child care issues concerning the children and the parties to have equal shared parental responsibility for all other issues.
Compliance with orders for the children to spend time with the father
The orders that governed the children’s time with the father have provided, in general terms, as follows. The orders of Judge Hughes in December 2019 provided for the children to live with the mother and spend time with the father every weekend. The orders also provided for time with the father for two hours on two other days each week if the father is available or alternatively Facetime communication on two occasions each week. Handover was to occur at a Supermarket. In about May 2020 the previous orders governing time with the father were discharged and the timing of the weekend time spent with the father was modified slightly. Orders were also made for changeover to occur at K Services pending the availability of K Services to facilitate changeover. Until then, handover was to occur at G Retail.
An ongoing issue between the parties has been regarding compliance with the orders for the children to spend time with the father. This has seen the commencement of multiple contravention proceedings by the father, some of which had, and some of which had not been resolved by the time of the trial. It is also an issue that is given some clarity by the production of handover records by K Services.
At the time of trial there were a number of outstanding contravention applications brought by the father against the mother. Despite the potential prejudice to the mother in doing so, each of the parties sought that the court deal with the substantive dispute between them as to parenting in advance of resolving the contravention applications.
At the start of the hearing, it was suggested to the father that if the contraventions formed a part of his substantive case then the matters would be canvassed during the trial. In such a case it seemed questionable whether, if such matters were taken into account in the substantive case, there was any further utility in pursuing them after the trial, given that the purpose of contravention proceedings is securing compliance rather than inflicting punishment. To the extent that future compliance is raised as an issue by such, it would form a part of the rationale for the final orders that are the product of these substantive proceedings.
The father has indicated that he still intends to pursue the outstanding contravention applications against the mother following judgment in this matter.
A significant issue within the trial that overlapped with the alleged contraventions, was the mother’s asserted failure to facilitate video calls between the father and the children, dealt with below.
Otherwise, despite the wide-ranging complaints about non-compliance, the parents gave little attention in the trial and the trial material to this issue.
The evidence, as going to this issue is set out below.
The August 2020 contravention judgment
The father alleged that the mother contravened orders of 13 December 2019 by failing to attend handover at a Supermarket with the children on a number of occasions between December 2019 and May 2020.
By judgment of 10 August 2020 issues were determined as to the mother’s failure to attend for handover, the father failing to attend for handover, and the mother failing to respond to requests made by the father, pursuant to orders, for time with the children.
The determination of these issues was in part reliant upon CCTV footage from the handover location that was available for a number of the contested occasions. The parties viewed the footage in advance of the proceedings and agreed facts as to who appeared in the footage. A number of the occasions prosecuted by the father, where he alleged that the mother failed to attend, involve footage that demonstrated the mother’s presence but, despite his representations to the contrary, do not show him. It should be noted that a number of these contested occasions involve the mother and father messaging each other asserting that each was present, when, in fact, one was not.
The circumstances established that at various times each parent was disingenuous in respect of their claims regarding handover. Those episodes favour the mother, in the sense that the mother’s claims were disingenuous on two occasions, the father’s on many more occasions.
I found that, on the balance of probabilities, the father failed to attend handover to collect the children on 15 different occasions, and that the mother failed to deliver the children at changeover on 8 occasions and failed to respond to the father’s requests for further time on 8 occasions. It was further noted that the mother failed to attend the changeover on one other occasion by virtue of her mistaking the nominated day for handover and on another occasion where it was agreed that she would not attend. The specific results are extracted below in date order. They demonstrate a significant hiatus in the children’s time with the father, a hiatus in relation to which both parents bore responsibility at various times.
(a)The father failed to attend for handover at B Shopping Centre on 21 and 28 December 2019.
(b)The mother failed to attend for handover on 4 and 11 January 2020.
(c)The mother failed to attend for handover on 22 January 2020 by virtue of a mistake on her part as to the nominated day.
(d)The father failed to attend for handover on 18 and 25 January and 1, 7, 8, 12 and 15 February 2020.
(e)The mother failed to attend for handover on 18 and 22 February 2020.
(f)The father failed to attend for handover on 26 and 29 February and 7, 14, 21 and 28 March 2020.
(g)The mother failed to attend for handover on 4, 11, 28 and 25 April 2020.
The ICL submitted that this judgment was relevant on three grounds, as it pertains to (1) issues concerning the credit of the parties; (2) live issues regarding the parties’ compliance with orders; and (3) the parties’ attitudes towards one another during proceedings.
The judgment in relation to these issues indicates that significant caution should be exercised in respect of the evidence of each of the parties, but more so in respect of the father. While each was disingenuous, the occasions on which the father was significantly outnumber those of the mother. Additionally, the occasions on which the father pursued the mother for contravention, when he had not attended, demonstrated a manipulative and cynical use of the court processes in a manner abusive of the mother.
The judgment also identifies significant issues of non-compliance by each of the parties, which between them resulted in the children missing out on a significant period of time with the father.
K Services records
Following this period, handover arrangements were changed such that they occurred at a professional handover facility at K Services. The ICL extracted the attendance handover records for K Services material produced on subpoena and produced a helpful aide memoir that assisted in identifying the following:
(a)Changeover was cancelled by K Services on 27 July and 14 August 2020 because of the children’s distress.
(b)The father cancelled on 28 August 2020 because he was unwell.
(c)The mother cancelled on 18 September 2020 because she and the children were unwell, giving notice at 3.50 pm for the 4 pm changeover booking. (The father complains that the mother withheld Y from her time with him on the weekend in 2020, on the basis that she was ill. He notes that the mother posted images of Y, apparently at a party on the Sunday. The mother said that Y had recovered to some degree by then.)
(d)The mother cancelled on 5 March 2021 because of an emergency.
(e)The mother cancelled on 14 May 2021 because she was unwell.
(f)The father cancelled on 30 July 2021 because he was unwell.
(g)The mother cancelled on 6 and 13 August 2021 because the children were unwell. Medical certificates were provided.
(h)The mother cancelled on 20 August 2021 because of Covid quarantine. Medical certificates were provided.
(i)The mother failed to show up on 10 September 2021 and advised that she was cancelling because the children were unwell. Medical certificates were provided.
(j)The mother cancelled changeover on 17 September 2021 because changeover was to occur at a McDonald’s party.
(k)The mother cancelled changeover on 8 and 22 October 2021 because the children were unwell.
(l)The mother cancelled on 29 October 2021 because her car broke down.
(m)The mother did not attend for changeover on 24 December 2021 because she did not receive confirmation from K Services.
(n)Both parties did not attend on 11 February 2022 because of confusion about the 2022 changeover arrangements.
(o)The father cancelled on 25 February 2022.
(p)On 11 March 2022 the father requested a changeover reschedule which the mother did not agree to and changeover did not happen. K Services cancelled all further Friday morning changeovers due to repeated cancellations.
(q)The mother cancelled on 29 April 2022 because the father was late, and the mother said she could not wait for more than 5 minutes.
(r)Both parties cancelled changeover for 28 May 2022 because they were waiting for Court orders.
(s)The father cancelled on 10 June 2022 because he was a close contact and had to isolate.
(t)The father cancelled on 22 July 2022 because he was unwell.
(u)The mother cancelled on 5 August 2022 because she and the children were close contacts.
(v)The father cancelled on 2 September 2022 because of a family emergency.
(w)On 30 September 2022 neither party arrived for changeover and the father informed K Services that the mother and children were in Sydney.
(x)Both parties cancelled changeover on 4 October 2022. The father advised that the children were on holiday. The mother indicated that they do not require changeover until after court later in the week.
(y)The mother cancelled on 18 October 2022 because the children were unwell.
(z)The father cancelled on 11 and 15 November 2022 with no reason given.
(aa)The mother did not attend changeover on 29 November 2022 due to a personal emergency.
(bb)The mother cancelled changeover on 17 February 2023 because she was unwell.
(cc)On 7 March 2023 the father was late for changeover and the mother did not wait. Under cross-examination the mother explained that she had a tradesperson attending her home and therefore could not wait when the father was late. The parties subsequently handed the children over outside a supermarket at 6.30 pm.
(dd)The father cancelled changeover on 17 March 2023 because he was unwell.
(ee)The mother cancelled changeover on 21 March 2023.
(ff)The mother cancelled changeover on 4 April 2023 and provided a medical certificate.
(gg)Neither party attended for changeover on 6, 11, 18 and 20 April 2023.
(hh)The father cancelled changeover on 28 April 2023.
(ii)Changeover did not occur on 30 April 2023, it is unclear who cancelled.
(jj)The mother cancelled all future handovers on 16 May 2023 due to child abuse allegations.
(kk)On 30 May 2023 orders were made changing the handover arrangements such that the midweek handover in mid-2023 was to take place at the children’s schools rather than K Services. This resulted also in a change of timing that meant the children were left at the school in advance of when handover to the father was due to take place. After some exchanges this meant that the mother returned to the school to obtain the children’s school bags. One of the criticisms made of the mother by the father was that the mother returned to the school and took Y’s schoolbag, but refused to acknowledge Y or collect her, causing her to become distressed. The father then asserts that he left work immediately to collect Y, whilst X was placed into after school care by her school. The mother stated that she was confused by the changes in the orders and thought that the father would be collecting the children from school. She stated that after she received a call from Y’s preschool, she went to the school and asked Y’s teacher if she could look after her until the father arrived. An email from Y’s preschool teacher, Ms SS, to the mother confirmed that she advised the mother that she was willing to look after Y until the father collected her, as a one-off incident until the arrangements regarding pick-up were sorted out. The email also stated that once the mother arrived, she greeted Y and asked if she needed her bag. The mother then left with the bag.[4]
[4] Exhibit ICL 27.

On 11 July 2023 the mother called to confirm the changeover and K Services advised that no changeover had been scheduled but one could be facilitated. The mother said that her lawyer had spoken to the father’s lawyer to confirm however the father did not show up and advised that he was not aware of changeover being confirmed. However, the real issue was that the father’s car broke down meaning that he was unable to attend.
Missed video calls
Specific examples of contraventions were canvassed during these proceedings, being assertions by the father that the mother failed to provide the children for video calls with the father. Initially focus was placed on 17 February, 28 April and 31 May 2021.
The mother asserted that on these occasions she had internet issues, due to her inability to pay the bill. She was asked whether this had resulted in her internet being cancelled, and responded that she was given an extension, but that her service was then limited, and also interfered with by local construction.
Further explanation was given in relation to asserted contraventions on 25 August 2021 and 1 September 2021, where the mother said that again she was unable to pay her bill. She said that an extension was granted but that it gave her limited and interrupted service.
The mother then conceded that while she had these issues with the home internet and communicating with the father through her laptop, she had her telephone available to her even if she did not have adequate home internet access.
This undermines the mother’s explanation as to being unable to facilitate the communication because of home internet difficulties.
The mother has also complained that the father was inappropriate and undermining when on calls to the children. She complained that on one occasion he told the children not to eat chips when they were eating apple slices. She also alleged that when he commented that the children had a house, or a tv, that he did so in a sarcastic tone. She complained that although she could see the father on a call that he would disconnect and reconnect saying that he could not see the children. The mother also alleged that the father said negative things about her family, and about Country Z citizens. I am unable to conclude that there is substance to the complaints regarding the father’s conduct.
Conclusion re compliance
The combination of the contravention judgment, the K Services records and the other evidence in relation to compliance paints a picture of disrupted and patchy time spent by the children with the father. There are frequent gaps in their time, and significant disruption so as to leave the time as inconsistent.
The contravention judgment lays responsibility for that period at the feet of both parents, marking each out as disingenuous in relation to handovers, particularly the father. It is difficult to understand why the father would fail to attend to spend time with the children, and then allege that it was the mother who had contravened, other than as a non-child focussed abuse of the mother. The mother’s explanation for non-compliance with orders in relation to video calls was unpersuasive, and when seen in the context of her non-attendances as set out in the judgment, provide little basis to consider that the mother is committed to maintaining the children’s time with the father.
The K Services records show frequent cancellations, by both parents, often related to explanations of unwellness. For example, in 2021 the mother cancelled on 11 occasions, the father once. The mother accepted that on a number of occasions the father declined to take the children when unwell. While the mother doubted the father’s capacity to care for the children when ill, she ultimately accepted that the approach by the father when the children were unwell was positive.
The evidence does not reveal these explanations as provided to K Services as anything other than genuine, given the limited exploration of the issues during the trial.
What then is left is the fact of inconsistency and interruption, but, unlike the period associated with the judgment of August 2020, during the period associated with K Services, little reason to consider that the disruption and inconsistency were the product of a lack of will to comply by either parent.
Sex abuse and neglect allegations
Incident of the weekend of 13-14 May 2023
The matter was listed for trial to commence on 15 May 2023. The trial was vacated and adjourned on that day in large part due to a late emerging sexual abuse allegation said to arise from the time that the children spent with the father (and, it was alleged, with their uncle Mr R) on the weekend of 13-14 May 2023. This also resulted in a temporary suspension of the children’s time with the father, pending further interim judgment on 30 May 2023 following which the children’s time with the father was reinstated.
By the time of the trial there was reason to consider that the mother no longer prosecuted this incident as indicative of a sexual abuse risk on the part of the father, as her evidence in her trial affidavit was confined to the following:
[102] On 14 May 2023, when [X] came into my care, I observed she was in severe pain in her groin region. [Mr Kabir] did not take her to the hospital. In fact, he simply consulted a doctor over the phone and obtained antibiotics without a script.
However, in her oral evidence the mother both explained that she had taken advice that the evidence did not sustain the notion of sexual abuse, but continued to entertain a possibility that the father may in the future abuse the children. The mother also appeared to reject evidence, set out below, as to the absence of Mr R, and thereby the potential remained that he had abused the children.
This incident also remained a key issue in the father’s case, as indicative of the mother presenting a risk of emotional abuse to the children in her preparedness to pursue a false allegation of sexual abuse against the father and his brother, Mr R.
The issue was first raised by the mother following the handover at K Services from the father to the mother on 14 May 2023. Detailed consideration was given at the trial to the sequence of events that preceded and followed the raising of the claim of sexual abuse. That sequence is set out below.
The father contended that X was unwell during the weekend that she was with him. At 7.39 am on the morning of Sunday 14 May 2023, the father booked a doctor’s appointment for X through LL Health Service. At 9.39 am, the father spoke with Dr MM by telehealth conference, who prescribed X with an antibiotics script to treat a urinary tract infection. The father collected the medication at 10.29 am and gave X her first dose at around 11.00 am.
At handover the father provided the caseworker with the antibiotics for X, along with a message that he would provide further information by email to the mother regarding such.
At 4.44 pm the father emailed the mother in the following terms:[5]
[5] Exhibit F 7
Hi
Please find the attached image of the Antibiotics prescribed by GP for [X] Today.
Kids Personal hygiene has been an ongoing issue. Frequently the Undergarments are soiled with feces and old feces are stuck and their hygiene is very poor. As usual [X] came and she on Friday night, had a shower and I noticed old feces stuck to her undergarments and on her legs as she had not been cleaned properly.
On Saturday evening , when she went to bed , she started complaining of abdominal pain, but she slept ok without any issues. This morning, she woke up and after going to the toilet, she started complaining of burning urination.
Called her usual GP, but no appointment was available. She was seen by another GP and main concern is as her hygiene has been very poor or she has developed bladder infection.
Anyhow GP prescribed [X] Antibiotics, which I handed over to [K Services] support worker. [X] already had a dose of antibiotics around 11 am and she had two dose of Paracetamol as well (last dose at 1300). The next dose of panadol she can have is at 1900 and along with the antibiotics dose.
If you have any issues, feel free to contact me.
Kind Regards
[Mr Kabir]
The mother says that she collected the children between 4.45 and 4.50 pm from K Services. There was no suggestion that the mother had seen the email at this point.
The mother accepts that on collection of the children she was provided with antibiotics, but says that at that time she did not know the nature of the medication until she opened the packet following arriving home. On identifying the antibiotics the mother asserted in her oral evidence that she thought that X may be suffering from a UTI, although she later said that she was not satisfied that this was the case.
The mother says that on collection X immediately complained to her “mama it is very pain there, I am in so much pain,” whilst pointing toward her groin area.[6]
[6] Exhibit F 6 [6].
The mother further says that, whilst in the car, X “kept saying, while crying, words to the effect of ‘it is very painful there’”[7] whilst gesturing to her genital area.
[7] Exhibit F 6 [9].
The mother denied drawing any link between the medication and the pain, asserting that the father often sent unusual items, such as lice treatments.
The mother described that she told X not to touch the area, and drove the three to five minute trip home, saying that she arrived home with the children between 4.55 and 5.00 pm. In her oral evidence the mother said that X was saying not to touch it. Once home, and as X was coming out of the car, the mother says that X again said that it was “so painful” whilst rubbing her groin area and crying.[8] The mother says that the following conversation then took place:[9]
Mother: Don’t rub it. I will take a look once we are inside. But what happened?
[X]: [Mr Kabir] rubbed that area many time, like 10 times. [Mr R] also did the same. I was telling them it was very painful, but they were still touching, and I was very uncomfortable.
[8] Exhibit F 6 [10].
[9] Exhibit F 6 [11].
The mother asserts that X appeared terrified and scared whilst saying this.
The mother stated in her oral evidence that she did not undertake an examination of X, as X did not allow her, saying that she was in too much pain.
The mother understood Mr R to be a reference to the children’s uncle. She says that the conversation continued:[10]
Mother: Where were you? Were you at [Mr Kabir’s] house or [Mr R’s] house?
[X]: We were at [Mr Kabir’s] house. [Mr R] came in the morning.
[10] Exhibit F 6 [13]
The mother said that she then called the police, although later she said that it was her lawyer who called the police.
The mother emailed the father at 4.53 pm in the following terms:[11]
[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.
[11] Exhibit F 7.
The father responded to this email in the following terms (specific time of email unclear):[12]
Hi
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.
Kind Regards
[Mr Kabir]
[12] Exhibit F 7.
The mother’s then lawyer, Mr NN gave evidence that the mother called him at about 4.55 pm. Whilst he maintained a privilege claim on the part of the mother as to the conversation that took place between them, he said that he overheard a child’s voice crying in the background of the call and saying:
[Mr Kabir] touched me, [Mr Kabir] touched me
The mother described that whilst speaking with her lawyer X approached her complaining of pain, chanting that Mr Kabir had touched her. In her oral evidence the mother said that X was in another room during the call, but when she left the room the mother paused in her conversation with the lawyer.
There was a level of incongruity between the account given by the mother in her affidavit and her description in her oral evidence.
For example, the mother explained that on the basis of her interim conclusion that X was suffering from a UTI that she called her lawyer, as the trial was due to start the following day, and she did not know who would care for X if X was ill. She considered that this may impact the trial. The mother did not disclose the content of her conversation with her then lawyer, successfully claiming privilege. For example, the mother was asked whether she had told her lawyer that X had said “[Mr Kabir] had rubbed that area many times.” The mother then claimed privilege over her communication with her lawyer. No adverse inference is available in relation to the mother’s claim of privilege.
However, on the mother’s account as otherwise set out above it appears that she formed the view that X had been sexually abused prior to calling her lawyer. Her explanation then of why she was calling her lawyer (as X's UTI may impact the trial) did not ring true in the context of her email to the father, effectively accusing him of sexual abuse.
In her oral evidence the mother further said that she had two telephone calls with her lawyer, and that she had first heard from X that Mr Kabir had touched her after the first call from the lawyer.
This timing, however, does not sit with the conversation that the mother claims took place as she and the children were getting out of the car, nor with the email that she sent the father, nor with the evidence of the lawyer.
The mother further asserted in her oral evidence that it was in between the calls with her lawyer that X elaborated that the touching had occurred on the Saturday, although the mother at no time set out the conversation with X that provided such elaboration. The mother asserted that such did not make it into her affidavit as it was produced in a rush.
In her oral evidence the mother asserted that the children confidently told her, when she got off the phone from the call to her lawyer, that the incident had occurred ‘yesterday’, that is, on Saturday 13 May 2023.
In her oral evidence the mother also accepted that X had described the incident as occurring on Friday 12 May 2023.
Per Exhibit ICL 4, being a record of a police investigation, when police attended on 14 May 2023 the mother is recorded as saying that X had rubbed her private area and said that she had pain in that area, that the father had rubbed her (in the private parts) and washed her, and that Mr R had touched her, pulled down her trousers and touched her in the private areas. This was not a detail that made it into the mother’s affidavit about this issue on 15 May 2023. On Tuesday 16 May 2023 the mother applied on an ex parte basis in the Magistrates Court for an interim family violence order against Mr R. In the application executed by the mother she represented as follows (it should be acknowledged that this is not, on its terms, necessarily a claim that the touching occurred on the Sunday):
The most recent incident of family violence occurred on Sunday 14 May 2023 when my eldest daughter disclosed sexual abuse by the Respondent. Both my daughters disclosed physical abuse by the Respondent on this day as well.
In response to the allegation levelled at him, Mr R filed an affidavit on 18 May 2023 annexing material addressing his whereabouts, in particular establishing his presence in Sydney at all relevant times during the father’s time with the children from Friday 12 May 2023 to Sunday 14 May 2023.[13]
[13] Affidavit of Mr R dated 18 May 2023 [17]-[28].
In this affidavit, Mr R asserts that after dropping his children off at school, he worked a shift from 9 am until 7 pm on Friday 12 May 2023. He annexed a copy of his log for this period as well as fuel receipts and a WhatsApp video call with Mr Kabir.
In the same affidavit, Mr R asserts that he worked a shift from the early morning Saturday until 5.44 pm and annexes his log for this period. He asserts that after finishing his shift, he refilled his car and did some shopping. He also annexes copies of credit card statements showing various purchases at stores around Sydney on this day including a fuel receipt. Mr R says that he called Mr Kabir a couple of times that evening to discuss arriving at Mr Kabir’s home late on Sunday night and annexes the call log to his affidavit.
In the same affidavit, Mr R asserts that he also began a shift early on Sunday morning and worked until 3.40 pm, annexing a copy of his log for this period. Mr R asserts that upon arriving home after his shift, he received a call from Mr Kabir about the sexual abuse allegations, following which he attended a police station. Mr R provides receipts of purchases made in Suburb UU prior to filling up his car and departing for City E. He provides the fuel and e-tag payment receipts, Mr R asserts that he arrived at Mr Kabir’s home at 10 pm that evening.
In his oral evidence, Mr R asserted that the app requires workers to take a photo before starting and finishing a shift. He said that the app uses facial recognition to check the identity of the driver.
In her cross-examination of Mr R, the mother suggested that another family member borrowed his car and credit card and this accounts for the log and purchase receipts in Sydney while she asserts Mr R was actually in City E. Mr R denied this, asserting that his younger brother does not borrow his car or rely on him financially, and his wife does not use his credit cards.
The evidence establishes that Mr R could not have been present for the weekend, or in the children’s presence, or that he had any opportunity to abuse them.
As noted above, X was spoken to by the police on 14 May 2023. Exhibit ICL 4 sets out X’s statements to the police as follows:
“I had a shower and something happened”
“The soap went 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.
The mother asserted in her oral evidence that the police told her that X had said to them that “[Mr Kabir]” had touched or rubbed her.
X was again spoken to by the police on 15 May 2023, with her comments being recorded 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 all 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
Y was also spoken to by the police on 15 May 2023 and her comments are recorded as follows:
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 drank 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.

It may also be observed that if there is a difficulty on an individual occasion, for example a misunderstanding, or communication issue, or even as has occurred in the past, car troubles, the added distance renders it even more difficult to recover by an alternative arrangement and the lower frequency associated with Suburb W means any missed time results in a significant gap in the period the children spend with the father.
Importantly, it is also an arrangement that renders at least half of the handovers unable to be accomplished through the children’s attendance at school, resulting in the need to find an appropriate professional handover service, or relying on direct handovers between the parties. Direct handovers between the parties have, at times, been demonstrably unworkable.
It may be accepted that the mother working will be of benefit to the children, not only materially, but also for the personal reinforcement it will give to the mother. It will undoubtedly be beneficial to the mother.
However, despite a contract, and even accepting that the mother will complete the requirements to qualify as a general practitioner, there is no evidentially based reason for confidence that the mother will be granted the waiver that will also be required. The availability of the work is at best speculative.
What is not speculative is the lessened scope for time with the father, the increased impediments to each period of time, and the loss of the school as the location of a significant proportion of the handovers.
Under those circumstances, the proposed move to Suburb W is not in the best interests of the children.
Rather an arrangement should be made for fortnightly time with the father, during term time from school to school, allowing the children more scope for the father to be involved in their schooling by incorporating school nights, on a 9-5 arrangement. The evidence is suggestive that the relationship with the father is important to the children, and one that they experience positively. His deep involvement in their lives is to their benefit, particularly if the children are not subjected to handover difficulties or the parents’ conflict.
The ICL’s proposal in respect of school holidays and special occasions provides for the children to appropriately share special occasions with both parents and enjoy the benefits of school holidays with each. Some modification will be made to those arrangements, for example to provide for the children to spend the whole of the special religious day with one parent, rather than splitting the day as proposed by the mother. This may be anticipated to decrease the scope for the children being exposed to parental conflict on such special days.
A further significant issue for the parties was as to international travel for the children. It may be expected that the children would benefit from travel, in particular to Country Z, and to contact with their extended families there. Each party seeks to travel and raises the risk accompanying the other party travelling with the children.
While there is good reason to think that both parents have strong ties to Australia, their previous non-compliance with orders, their conduct in relation to that non-compliance, and their disingenuous approach to the contraventions as evidenced in the judgment of 20 August 2020 point to too great a risk of overseas retention of the children should they be permitted to travel. Such a retention, and its consequential exclusion of the other parent should be considered to be a result counter to the children’s best interests.
CONCLUSION
Orders will be made largely in the terms proposed by the ICL, with adjustment to provide for a nine-five split during each school term. That split will be on the basis of a single block each fortnight, minimising handovers and allowing the children to have significant involvement by the father across both school and non-school time.
Other minor amendments will be made to the scheme proposed by the ICL, in the interests of minimising the children’s exposure to conflict, or the possibility of confusion about the arrangements for the parents.
An order will permit the parties to vary the arrangements by agreement in writing.
No provision will be made to allow for overseas travel.
Directions will also be given to progress the outstanding contravention proceedings.

I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 19 October 2023
APPLICANT FATHER’S PROPOSED ORDERS SOUGHT (FILED 27 AUGUST 2023):
(1)That the Father have sole parental responsibility for the children X born 2017 and Y born 2018 (“the children”).
(2)That the children live with the Father.
(3)That the Mother spends no time with the children and is restrained from removing the children from the Father’s care without his written consent.
(4)That pursuant to s 68B of the Family Law Act 1975, the Mother shall be restrained by injunction from:
(a)Approaching or coming within 20 metres of the Father and the children.
(b)Approaching or coming within 20 metres of any place where the Father or the children may reside from time to time.
(c)Approaching or coming within 20 metres of any place where the children might attend school; and
(d)Approaching or coming within 20 metres of any place of the Father’s employment unless for medical treatment.

(5)That the parents shall communicate via the Talking Parents Application for the purpose of communicating about the care, welfare and development of the children unless in the case of an emergency.
(6)That the parents shall ensure that communications between them shall be in a concise, polite and businesslike manner.
(7)That without admissions, the parties are restrained from:
(a)Physically disciplining the children or using any form of corporal punishment upon the children or permitting any other person to do so.
(b)Discussing any legal proceedings between the parents or the children’s future spending time arrangements in the presence or hearing of the children or permitting any other person to do so.
(c)Denigrating the other parent, their respective partners, their religion, family or friends directly or in the presence or hearing of the children and they will each use his or her best endeavours to ensure that no one else does so in the presence or hearing of the children.

(8)That the Mother is restrained by injunction from:
(a)Making arrangements for the children to attend upon any counsellor, social worker, psychologist or psychiatrist without the written consent of the Father.
(b)Removing the children from their school or pre school without the written consent of the Father.

(9)That the Mother is restrained and an injunction issue restraining her from disparaging or rebuking or otherwise denigrating the Father or any of his family members or permitting any other person to do so.
(10)That both parties shall follow any recommendations made by the children’s treating medical practitioners and provide the children with any prescribed medication, as directed by the children’s treating medical practitioners.
(11)Each parent shall ensure that the other parent is listed on any preschool or schooling enrolment forms for the children.
(12)Each parent is to provide to the other at least seven days’ notice of upcoming medical, orthodontic, dental, physiotherapy, optometric, specialist, psychological, psychiatric and or counselling appointments for the child, including the name of the treating practitioner, the date, time and reason for the appointment, and the outcome of the appointment and recommendations made. In the event that the appointment is with a specialist, each party shall be at liberty to attend such appointments.
(13)Each parent shall advise the other forthwith of the name of any general practitioner or other specialist who treats the children whilst the children are in that parent’s care and has previously done so for the last 12 months.
(14)In the event of a medical emergency, serious health issue or injury concerning the children the parent with whom the children are spending time with shall advise the other parent as soon as practicable and in any event within 2 hours of such medical emergency, serious health issue, or injury.
(15)That in the event the children are prescribed any medication, the parent with whom the children are spending time is to ensure that if the medication is required to be continued into the time the children spends with the other parent, the medication and instructions in relation to its use shall be provided at changeover.

Authority to provide information to parents and access to information
(16)This Order shall act as sufficient authority for any doctor or employee of a hospital providing treatment to the children to release to each parent upon request, any information that would ordinarily be provided to a parent in relation to the children’s condition and treatment.
(17)This Order shall act as sufficient authority for each of the children’s school, day-care or preschool to provide to each parent, at their own expense, copies of all school reports, any other report on the school progress and behavioural issues, and all school circulars and letters in relation to the children.
(18)This Order shall act as sufficient authority for each of the children’s school, preschool, day-care or any other education facilities attended by either children to provide information to each parent about the children’s attendance and, or progress, upon request.
(19)That within 14 days, the Mother shall do all things to enrol and thereafter complete the Circle of Security parenting course and provide the Father’s solicitor with confirmation of her enrolment and certificate.
(20)Each parent is to do all things necessary to request any preschool or school or any other educational facility attended by the children, includes the other parent in all communication.

Travel
(21)The Father be at liberty to apply for, and or renew, an Australian travel document (as defined in the Australian Passports Act 2005) to issue for the children, X born 2017 and Y born 2018, without the signature or consent of the Mother, and that, upon application by the Father, the Minister issue an Australian travel document for the children pursuant to s 11(b) of the Australian Passports Act 2005.
(22)The Father shall retain possession of the children’s passports.
(23)That pursuant to s 65Y of the Family Law Act the Father be at liberty to travel overseas with the children and these Orders are authenticated consent for the purposes of s 65Y of the Act.
(24)That the Father notify the Mother of his intention to travel overseas with the children and provide to her a copy of the return flight itinerary for their travel not less than 60 days prior to their departure. That in the event the Father’s travel is to occur at times when the children are due to spend time with the Mother pursuant to these Orders, then the Mother’s time will be suspended.

MINUTE OF ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER (EXHIBIT ICL37):
(1)All previous parenting orders be discharged from 1 January 2024.

Parental responsibility
(2)The mother shall have sole parental responsibility for medical and educational issues concerning the children X born 2017 and Y born 2018 (collectively ‘the children’), but before she makes a decision in relation to those decisions 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 he may have on the decision to be made;
(c)Take into account any views expressed by the father; and
(d)Advise the father of her decision as soon as practicable, and within 7 days of the making of such a decision.

(3)The parties shall otherwise have equal shared parental responsibility in relation to other long-term issues concerning the children, including religious and cultural issues.

Live with
(4)The children shall live with the mother.
(5)The mother is permitted to relocate the residence of the children to the Suburb W region of Sydney from 1 January 2024.

Spend time arrangements
(6)The children shall spend time with the father during school terms as agreed in writing and failing agreement as follows:
(a)The third weekend of each school term from the conclusion of school or 3:00pm on the Friday and conclude at 3:00pm on Sunday;
(b)The seventh weekend of each school term from the conclusion of school or 3:00pm on the Friday and conclude at 3:00pm on Sunday; and
(c)On one occasion each school term, from 3:00pm or the conclusion of school Friday to 9:00am or the commencement of school Monday, subject to:
(i)the father providing the mother with 14 days notice in writing of his intention to spend time on the identified weekend;
(ii)such time being spent in the Sydney metropolitan region; and
(iii)such time not coinciding with any special occasions identified in these orders unless agreed in writing by the mother.

(7)For the purpose of facilitating Orders [(6)(a)] and [(6)(b)], the father shall collect the children from school at the conclusion of school Friday, or 3:00pm from Coles Supermarket in the QQ Shopping Centre should the children not be at school that day, and the mother shall collect the children from K Services City E changeover service, or G Retail, at 3:00pm Sunday at the conclusion of time.
(8)For the purpose of facilitating Order [(6)(c)], the father shall collect the children from school at the conclusion of school Friday and deliver them to school at 9:00am on Monday at the conclusion of time.

School holidays
(9)For the avoidance of doubt the school holidays commence at 3:00pm on the last day requiring attendance of the children at school and conclude at 9:00am on the first day requiring the children to attend school in the following term.
(10)Order 6 is suspended during school holiday periods and in lieu thereof the children shall spend time with each of the parents as follows:

Term School Holidays
(11)From 2024:
(a)With the father:
(i)From the conclusion of school or 3:00pm on the last day requiring attendance at school to 3:00pm on the middle Saturday of the school holiday period in odd numbered years;
(ii)From 3:00pm on the middle Saturday of the school holiday period to the commencement of school or 9:00am the following term in even numbered years;

(b)With the mother:
(i)From the conclusion of school or 3:00pm on the last day requiring attendance to 3:00pm on the middle Saturday of the school holiday period in even numbered years;
(ii)From 3:00pm on the middle Saturday of the school holiday period to the commencement of school the following term in odd numbered years.

Term 4 School Holiday Period
(12)From 2023/2024
(a)For half of each school holiday period on a week-about basis with the children
(b)spending time with each parent as follows:
(i)In odd numbered years: with the father in the first, third and fifth week and with the mother in the second, fourth and sixth week;
(ii)In even numbered years: with the mother in the first, third and fifth week and with the father in the second, fourth and sixth week.

Special occasions
(13)Notwithstanding any other Order the children shall spend time with each of the parents as follows:
(a)Both children shall spend time on their birthdays with the parent whom is not otherwise caring for them that day pursuant to these Orders from the conclusion of school to 7:00pm on a school day and from 10:00am to 2:00pm on a non‑school day with changeover to be at the Supermarket (Suburb W or Suburb RR) nearest the location the children are being cared for that day.
(b)With the mother from 5:00pm the day before Mother’s Day to the commencement of the school on the day following Mother’s Day.
(c)With the father from 5:00pm the day before Father’s Day to the commencement of school on the day following Father’s Day.
(d)During the Eid al-Adha period:
(i)With the mother in even numbered years; and
(ii)With the father in odd numbered years.

(e)During the Eid al-Fitr period:
(i)With the father in even numbered years; and,
(ii)With the mother in odd numbered years.

Changeover
(14)Changeovers are to be effected as follows:
(a)During school term as provided by Orders 7 and 8;
(b)During term school holidays the mid holiday changeover shall by at QQ Shopping Centre in even numbered years and G Retail in odd numbered years;
(c)During the Term 4 holiday period changeover shall be at QQ Shopping Centre for the holiday period that commences in even numbered years and G Retail in the holiday period that commences in odd numbered years;
(d)On special occasions at QQ Shopping Centre in even years and G Retail in odd numbered years.

Communication
(15)The children shall communicate by facetime/skype each Sunday at 5:00pm with the parent providing care for the children to facilitate the call to the other parent.
(16)The parents will communicate with each other regarding the children in writing except in cases of emergency.

Authorities and exchanges of information
(17)These Orders act as authority for any daycare, preschool and school the children will attend from time to time to provide both parents with copies of all information including reports, newsletters, excursion forms and notices ordinarily provided to parents of students.
(18)Each parent will notify the other as soon as practical via telephone of any serious injury or illness suffered by the children in their care, and the name and contact details of any treating medical professional.
(19)Absent illness requiring hospitalisation, the children shall spend time with each parent in accordance with these orders and with the appropriate exchange of information about the symptom, treatment and medication to treat any illness being experienced by one or both of the children, being provided to the other parent.
(20)That each parent notify the other of the name and contact details of any general practitioner, paediatrician, optometrist or other medical professionals and/or specialist who treats the children while the children are in that parent’s care.
(21)These Orders act as authority for any medical practitioner who treats the children from time to time to provide both parents with information about the children’s diagnosis, treatment and future prognosis.
(22)Each parent is to advise the other parent of their mobile telephone number and residential address within 48 hours of the making of these Orders and to advise of any change to address or mobile telephone number within 48 hours of such change occurring.

Other
(23)Each parent shall ensure that the children have any necessary uniforms, books, schoolbag or other materials necessary for their attendance at pre-school or school on occasions when they are moving into the other parent’s care and will be attending pre‑school or school during their time with that parent.
(24)Each parent is responsible for the cost of childcare during any period that parent requires childcare, and the parties agree that all available childcare subsidies are to be utilised to minimise the out-of-pocket expenses of each party.

Restraints

(25)The parties are restrained by injunction from:
(a)Physically disciplining the children; or
(b)Denigrating the other parent or members of their family in the presence or hearing of either of the children.

Family Law Watchlist
(26)That until 1 January 2026, Mr Kabir and Ms Kabir, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children, X born 2017 and Y born 2018, from the Commonwealth of Australia until they are 18 years of age;
(27)AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.

ORDERS SOUGHT BY THE MOTHER (CLOSING SUBMISSIONS 29 SEPTEMBER 2023)
In her closing submissions, the mother adopted the ICL’s proposed orders with some modifications. She adopted the proposed orders in relation to parental responsibility, live with and spend time with, with the modification that she is permitted to move to anywhere in the Greater Sydney Area rather than the Suburb W region of Sydney.
The mother proposed a gradual increasing of school holiday time with the father until 2025 as extracted below.
The mother also agreed with the ICL’s proposed orders regarding special occasions with the exception that the children spend time with both parents on Eid as extracted below, rather than alternating years.
The mother adopted the ICL’s proposed orders numbered 12-22. She supported the watchlist orders with an exception that either parent can travel overseas for 3 weeks if the mother provides a bond of $20,000 to the court, or the father provides a bond of $60,000.
MINUTE OF ORDERS SOUGHT BY THE RESPONDENT MOTHER (EXHIBIT M1)
…
School holidays
(5)During NSW gazetted short school holidays term 1,2 and 3 at such dates and times as agreed between the parents in writing and failing agreement as follows:
(a)Until 2024. for a period of 3 days and 2 nights in the first week of the school holidays from 6.30pm Friday to 4pm Sunday followed by;
(b)In 2024. for a period of 4 days and 3 nights in the first week of the school holidays from 6.30pm Thursday to 4pm Sunday followed by;
(c)from 2025 and thereafter. for a period of one week at a time thereafter. first week to be spent with father in odd numbered years and second week with the father in even numbered years.
(d)For the Term 4 school holidays:
(i)For 2023, each alternate week for a period of 3 days and 2 nights commencing in the first week of the school holidays from 6.30pm Friday to 4pm Sunday.
(ii)For 2024, each alternate week for a period of 4 days and 3 nights in the first week of the school holidays from 6.30pm Thursday to 4pm Sunday followed by·
(iii)For 2025, each alternate week for a period of 5 days and 4 nights in the first week of the school holidays from 6.30pm Thursday to 4pm Sunday followed by
(iv)From 2025 onwards and continuing thereafter, on a week about arrangement with the first week to be spent with father from 4 30pm Friday to 4pm Friday in odd numbered years and second week with the father in even numbered years.

(e)For the purpose of the implementation of Order 5, the school holiday period shall commence at the conclusion of school on the last day that children attends at school for the term and the NSW school holiday period shall conclude at the commencement of school on the first day of term that the children attends school and any pupil free days shall be included in the holiday time. In the event that there are an odd number of days that the parent who has the children for the first half of the holidays shall have the benefit of the extra day with changeover taking place at 5pm on that day.

Special occasions
(6)On special occasions the children will spend time with each of the parties as follows, unless otherwise agreed in writing:
(a)For Eid
(i)With the mother - on the first occasion of Eid (known as Eid -Al-Fitr) from 8:00pm (or 3.00pm if a school day) the day before the first day of that occasion of Eid until 5:00pm on the first day of Eid : and (ii) On the second occasion of Eid (known as Eid Al-Adha) from 12:00pm (or 3.00pm if a school day) until 12:00pm next day on that occasion of Eid.
(ii)With the father on the first occasion of Eid (known as Eid -Al-Fitr) from 5.00pm on the first day of Eid until 12-oopm on the following day and (ii) On the second occasion of Eid (known as Eid Al-Adha) from 8:00pm (or 3.00pm if a school day) on the day before the first day of that occasion of Eid until 12·00 pm on that occasion of Eid
(iii)With the first day of the Eid occasion to coincide with the first day of the Eid occasion celebrated in Australia.

…

File number(s):	CAC 2337 of 2019
Judgment of:	GILL J
Date of judgment:	19 October 2023
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Primary considerations – Assessment of risk – Where the mother is self-represented and unable to cross-examine the father – Where there are allegations of family violence by both parents against each other – Impact of the conflict between the parents on the children – Where significant non-compliance with handover orders has previously been found – Where there are allegations of sexual abuse of the children by the father – Where the father does not pose an unacceptable risk – Where there are allegations of physical and emotional abuse and neglect of the children by the mother – Where the mother does not pose an unacceptable risk - Where the parents each hold a poor view of the other as a parent – Where the mother seeks to relocate to Sydney for work – Relevance of significant non-compliance and a high degree of acrimony between the parents to relocation – International travel
Legislation:	Family Law Act 1975 – ss 60B, 60CA, 60CC, 65DAA, 65DAC and 102NA
Cases cited:	Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101 Isles & Nellisen [2022] (2022) FLC 94-092; FedCFamC1A 97 M v M (1988) 166 CLR 69 Marsden & Winch (No 3) [2007] FamCA 1364 Mazorski v Albright (2007) 37 Fam LR 518 Phillips & Hansford (2019) 60 Fam LR 160 Taylor and Barker (2007) FLC 93-345
Division:	Division 1 First Instance
Number of paragraphs:	264
Date of hearing:	28-31 August & 27-29 September 2023
Place:	Canberra
Counsel for the Applicant:	Mr Alexander
Solicitor for the Applicant:	JS Family Lawyers
Solicitor for the Respondent:	Litigant in Person
Counsel for the Independent Children's Lawyer:	Ms Davis
Solicitor for the Independent Children's Lawyer:	Robinson McGuinness

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:	19 OCTOBER 2023