Kabir & Kabir (No 6)

Case [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…

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AGLC
Kabir & Kabir (No 6) [2023] FedCFamC1F 883
Case
[2023] FedCFamC1F 883
Decision Date

CaseChat Overview and Summary

The case of Kabir & Kabir (No 6) involved a dispute between Mr. and Ms. Kabir concerning the care and custody of their two children, X and Y, born in 2017 and 2018, respectively. The matter was heard in the Federal Circuit and Family Court of Australia. The central issues before the court were the determination of parental responsibility, the living arrangements for the children, and the mother's proposed relocation to Sydney. Both parents had made serious allegations against each other, including family violence, sexual abuse, and neglect. The court had to decide whether either parent posed an unacceptable risk to the children and whether the mother's relocation would be in the children's best interests.

The court carefully considered the evidence and the credibility of both parents. It found that both parties had previously demonstrated significant non-compliance with court orders and had exhibited a high degree of acrimony towards each other. The court also noted that while there were serious allegations of abuse and neglect, neither parent posed an unacceptable risk to the children. The court concluded that equal shared parental responsibility was appropriate for long-term issues, while the mother would have sole responsibility for medical and educational decisions, with the father having a right to be consulted and informed. The children were ordered to live with the mother but would spend considerable time with the father under a detailed and structured timetable.

The court restrained the mother from relocating the children from the City E region. It reasoned that the significant non-compliance and ongoing conflict between the parents made relocation a risky proposition for the children. The detailed time-sharing arrangement was designed to ensure that both parents maintained a meaningful relationship with the children, while mitigating the risks posed by the parents' conflict. The court also made orders to regulate communication, information sharing, and discipline between the parents. It further restrained the parties from removing the children from Australia until they reached the age of 18.

The final orders provided a comprehensive and detailed arrangement for the care, contact, and communication between the children and each parent. The children were to live with the mother but would spend substantial time with the father, with specific provisions for school terms, holidays, and special occasions. The orders also included detailed provisions for communication, information sharing, and discipline, as well as restraints on the removal of the children from Australia. The contravention applications were referred for a full-day hearing before a different judicial officer.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.