Kader and Winchester

FEDERAL CIRCUIT COURT OF AUSTRALIA

KADER & WINCHESTER

[2019] FCCA 244

Catchwords:
FAMILY LAW – Interim parenting orders – father has had no contact with child over a period of two (2) years and eight (8) months – appropriate that time with child resume at contact centre – procedural orders made to enable updating of family report within a four (4) month period – orders for time made.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CG, 60CC, 60CA

Applicant:

MR KADER

Respondent:

MS WINCHESTER

File Number:

BRC 711 of 2017

Judgment of:

Judge Egan

Hearing date:

5 February 2019

Date of Last Submission:

5 February 2019

Delivered at:

Brisbane

Delivered on:

5 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Andrew

Solicitors for the Applicant:

Springwood Lawyers

Counsel Independent Children’s Lawyer :

Ms Bertone

Independent Children’s Lawyer :

Wallace Perkins Family Law

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

Women’s Legal Service

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER:

That pending a final determination of the matter, the Mother have sole parental responsibility for the child [X] born … 2015 (“the Child”) provided that, except in the event of an emergency:
(a)The Mother will advise the Father via email about an issue for the child that requires a decision;
(b)The Father will respectfully respond to the Mother via email with his views on the issue to be decided;
(c)The Mother will consider the Father’s views and then will advise the Father of her decision.
That the child live with the Mother.
That within seven (7) days of this order, the Mother shall obtain a mental health plan and thereafter make an appointment and attend upon a Psychologist to obtain counselling to deal with issues arising from the child spending time with the Father in addition to obtaining support as to the re-introduction of the child’s time with the Father and for the purpose of this order:-
(a)the Mother shall advise the ICL of the contact details of her Psychologist within 7 days of her engagement;
(b)leave be granted for the ICL to provide the Psychologist with a copy of the Family Report of Ms A and a copy of these orders; and
(c)Leave be granted to Ms A to contact the Mother’s Psychologist in the preparation of her updated Family Report.
That within seven (7) days of the date of these orders the Mother and Father shall attend upon the Contact Centre, so as to complete their intake and each party meet the costs of their intake.
That the child forthwith spend time and communicate with the Father as agreed and failing agreement as follows:
(a)Once per week, being a Saturday, for 2 hours on 8 occasions as supervised by the Contact Centre, at the expense of the Father;
(b)Once the child has spent supervised time with the Father for not less than 8 occasions, the child shall spend time with the Father for 3 hours each Saturday as supervised outside the Contact Service with a roving supervisor from or employed by the Contact Centre to supervise such time.
That for the purpose of supervised time as per Order 5, the Mother and Father shall instruct the Contact Centre to stagger the parent’s arrival and departure times so that they do not come into contact with each other and that leave be granted for the parties in these proceedings to provide the Centre with a copy of these orders.
That upon the child spending time with the Father on not less than 10 occasions, the parties shall attend upon Ms A for the preparation of an updated Family Report.
That within seven (7) days of the making of these orders, each parent shall enrol to complete the Post-Separation Parenting Orders Program
That neither parent shall denigrate the other to the child or in the presence of the child nor allow any other person to do so.
That the Mother and Father and their agents or servants be restrained by injunction from removing or attempting to remove the child [X] … 2015 from the Commonwealth of Australia.
That the Marshall of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to include and retain the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court.
That each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

IT IS NOTED that publication of this judgment under the pseudonym Kader & Winchester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 711 of 2017

MR KADER

Applicant

And

MS WINCHESTER

Respondent

REASONS FOR JUDGMENT

The father was born in Brisbane to B Country migrant parents and is presently 39 years of age.
The mother was born to Australian parents and is presently 25 years of age.
The mother and the father were married in 2014. There is some dispute of little relevance as to whether they were first married in an Islamic ceremony or otherwise in accordance with Australian law.
The mother fell pregnant in about May of 2014, and the child the subject of the parenting proceedings was born on 15 March 2015.
The mother and father each had a very different upbringing. The father’s was predominantly in accordance with B Country culture, whereas the mother’s was what was described as traditional. Notwithstanding the latter, the mother converted to Islam before she met the father. Early differences arose in their relationship due to a number of fundamental personality differences between the two of them.
Each of the mother and the father have made serious allegations against the other. The mother’s allegations against the father highlight what she has alleged to be a violent domestic relationship which culminated in her obtaining a domestic violence protection order against the father. The relationship had so deteriorated between them that the parties had a trial separation in early 2016. There was a reconciliation in or about April 2016 but the parties finally separated in about May 2016. The protection order was made by consent without admission subsequent to that separation on 17 June 2016. The father was charged with a breach of that order on 14 September 2016 – it would appear that he attended at the mother’s residence contrary to the terms of the order to collect personal belongings.
The parties attended at a family relationship centre in middle/late September 2016 without any resolution of the breakdown issues experienced by them.
The father commenced proceedings on 25 January 2017 by which he sought, inter alia, orders that the mother and father have equal shared parental responsibility for the female child born of the relationship as well as orders for shared time.
On 14 March 2017 His Honour Judge Vasta made orders for substituted service of the father’s material upon the mother. The matter was adjourned to 8 June 2017.
On 8 June 2017 further orders for substituted service were made by His Honour Judge Vasta. The matter was further adjourned to 19 September 2017.
On 19 September 2017, the mother appeared by a Solicitor. On that date His Honour Judge Vasta made orders, inter alia, for the attendance of the parties before a senior family consultant on 13 November 2017, that the family consultant provide an advice to the Court pursuant to the provisions of s.11F of the Family Law Act 1975 (Cth) (“the Act”), and that an Independent Children’s Lawyer be appointed to represent the interests of the child. The matter was further adjourned to 20 November 2017.
On 3 October 2017 His Honour Judge Vasta discharged previous orders made by him on 19 September 2017, appointing a different senior family consultant to provide the s.11F advice to the Court. The matter was further adjourned to 14 December 2017.
On 14 December 2017 His Honour Judge Vasta ordered that the child live with the mother. No orders were made for the child to spend time with the father. An order was made that the ICL was granted leave to provide copies of subpoenaed material to a family report writer, albeit that no previous order for the preparation of a family report appears to have been made. The matter was adjourned for ‘mention/directions only’ to 31 May 2018.
On 31 May 2018 His Honour Judge Vasta made orders regarding the attendance of the father before one Ms C, a family therapist, as well as other orders enabling the ICL to liaise with Ms C concerning the father’s counselling/therapy sessions. The matter was adjourned further to 3 October 2018 for directions.
On 3 October 2018 His Honour Judge Jarrett made directions for the filing of affidavit evidence to be relied upon at trial. The matter was adjourned to 9 November 2018 for further directions.
On 9 November 2018 His Honour Judge Middleton listed the matter for final hearing for no more than two (2) days commencing on 17 December 2018. Due to the unavailability of a Judge to hear the matter on 17 December 2018, the matter was adjourned to 4 February 2019 for final hearing on 4 and 5 February 2019.
When the matter came before the court on the morning of 4 February 2019, it was noted that the family report prepared by a psychologist named Ms A was dated 22 March 2018. It was recorded in such report that relevant interviews with the father, the mother, the child and the maternal grandfather had been conducted on 28 February 2018, almost a year prior to trial. It was further noted that the father had not had any contact with the child of the marriage since the time of separation in May 2016.
The view was expressed that it would have been preferable had the matter been listed for interim hearing rather than for final hearing in circumstances where the father had had no contact with his daughter over a two (2) year and eight (8) month period. The view was further expressed that it was inapt for final parenting orders to be made in such circumstances. There was general acceptance by Counsel for the mother, the father and the ICL that should the court consider it appropriate to make an order or orders that the child spend time with the father, that such order or orders ought to be made on an interim basis so as to enable an updated family report to be prepared in due course.
Ms A, the family report writer, was called to give evidence by the ICL. She gave evidence in the context of her having been presented with a set of draft orders, prepared by the ICL, over the luncheon adjournment. Those draft proposed interim orders and were the subject of agreement on the part of the father. The draft orders relevantly proposed that the child commence spending supervised time with the father, and that such time increase over a ten (10) week period before the parties again attend upon Ms A for the purpose of her preparing an updated family report.
The mother opposed any interim order which contemplated the father having any contact with his daughter. Her case, firmly put by Mr Galloway of Counsel to Ms A during cross examination, was that any contact between the father and the child, whether supervised or not, was putting the child at such risk as to warrant no such order being made. Counsel put to Ms A instances of alleged abuse perpetrated upon the mother and the child by the father in support of such argument.
Ms A agreed with the proposed introduction of staged supervised time as contemplated by paragraph 5. of the draft proposed orders. That paragraph provided as follows:
5. That the child spend time and communicate with the Father as agreed and failing agreement as follows:
a. Once per week for 2 hours on 8 occasions as supervised on dates and times as can be accommodated by the Contact Centre, at the expense of the Father;
b. Once the child has spent supervised time with the Father for not less than 8 occasions, the child shall spend time with the Father for 3 hours each Saturday as supervised outside the Contact Service with a roving supervisor …
During the course of cross-examination, Ms A was asked by Mr Galloway about the risks of the child spending any time with the father in the light of the allegations of actual violence against the child as alleged by the mother. Ms A was further asked about whether in her opinion there was a real risk of harm to the child from the father in a contact centre supervised time context, to which she replied that in her experience, there was little risk of violence being suffered by the child at the contact centre during any supervised time with the father. She stated that she had never had an experience where a contact centre had not appropriately handled any situation which had arisen during any such contact. She also agreed with the proposition that during any contact time between the father and the daughter there ought to be segregation from the mother – namely the mother should not be able to come into contact with either the father or the daughter during any such contact time.
On the question as to whether supervised time would be best had in the presence of the mother’s father – one Mr Winchester – Ms A said that in her opinion it was better for contact between the father and the daughter to occur in circumstances where the mother’s father was not involved, stating that such involvement of the maternal grandfather could muddy the daughter’s relationship with her grandfather, something which ought to be avoided considering the dynamics of the case. Ms A said that notwithstanding her views she considered Mr Winchester to be a person who had appeared reasonable in her dealings with him.
Ms A impressed as someone who adopted a stance designed to advance the best interests of the child.
The father was cross-examined by Mr Galloway. The father appeared forthright when answering questions put to him by Counsel. He was taken to paragraphs 24 – 42 of the mother’s affidavit filed on 30 October 2018 and it was put to him that he had verbally and physically abused both the mother and the child. The father denied all such allegations. Despite those denials the father did concede that he had been responsible for failing to properly buckle up the child in her car seat on one occasion in circumstances where such failure had led to the child falling out of her seat. He admitted that he had shown a lack of judgment in that regard. He also admitted that having punched holes in the walls of the family home on two occasions was unacceptable conduct.
The historical examples of poor behaviour or judgment on the part of the father occurred during heightened periods of dispute between him and the mother. There is no longer such contact.
It was acknowledged by Ms A that the father had attended all required sessions with a family therapist named Ms C as well as having attended all other court ordered programs. The evidence was that the father had completed a PPP Positive Parenting Course and an anger management course. The report of Ms C at 2.5 recorded:
“From my perspective as a therapist, I have been particularly impressed by Mr Kader’s willingness to undertake every requirement the court has imposed. He has done so despite having no guarantee that he will see [X] again and with the knowledge that Ms Winchester is adamant that he will never spend time with their daughter.”
The evidence before the court of the father causing damage to the walls of the family residence falls within the definition of ‘family violence’ as set out in ss.4AB(1) and 4AB(2) of the Act. The damage falls within the example of family violence as provided for in Section 4AB(2)(e) relating to a person intentionally damaging property. The question for the court is whether an admitted example of family violence in the past on the part of the father ought to disentitle his daughter from having contact with him. The court is to have regard to the provisions of s. 60CG of the Act, which section provides as follows:
60CG Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The mother was cross-examined by Counsel for the ICL. Her primary position was that there ought to be no contact between the father and the child. She based that position not on the proposition that the father had allegedly perpetrated violence upon her but rather upon the proposition that the father been violent to the child in the past and that future contact posed an unacceptable risk to the welfare of the child.
The mother had alternative proposals in the event that the court was minded to order that it was in the child’s best interests that she spend time with the father. Her preferred position, in that event, was that the child spend “ … no less than two (2) hours each fortnight to be supervised by the maternal grandfather, Mr Winchester, at a time and place to be nominated by the maternal grandfather and agreed to by the father.”
In the further alternative, the wife proposed that if the father was not agreeable to spending time arrangements proposed by Mr Winchester, the father was to spend time with the child for not less than two (2) hours per fortnight at the Contact Centre, the costs to be borne by the father.
The nomination by the mother of the Contact Centre as the fall-back place for contact coincides with the nomination of that contact service as the venue for time to be spent between the father and the mother as proposed by the ICL and the father. The mother gave evidence that she had investigated the facility and was satisfied that it was appropriate for any contact time in the event that time was ordered. She said that the contact centre would take notes of how the contact time progressed, how the daughter and father interacted, and would otherwise make a note of any difficulties which might arise.
Mr Winchester was called as a witness and cross-examined by Ms Bertone, Counsel for the ICL. Mr Winchester impressed as a sensible individual who would do his best to advance the relationship between the child and her father should time between them be ordered. His home was familiar to the child and he appeared to be a person able to competently facilitate meaningful time being spent between the father and the daughter. He sensibly suggested that his supervisory role would confine him to being present but staying in the background so as to enable the father/daughter relationship to develop. He did, not surprisingly, admit that he would not be entirely impartial in the event of any future discord, though that is not surprising bearing in mind the filial love he has for his daughter.
The child’s best interests are always paramount when a court makes any parenting order (s.60CA of the Act). Section 60CC determines what is in a child’s best interests. The primary considerations as recorded in Section 60CC(2) are as follows:
60CC How a court determines what is in a child’s best interests:
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.

In this case, notwithstanding the commencement of proceedings by the father in January 2017, the father and the daughter have had no contact for a two (2) year eight (8) month period. The obvious intention between the mother and the father in the past arose from close personal contact in circumstances where there was clearly a poor inter-personal relationship between them. That close personal contact no longer exists.
A past history of a party to a relationship acting unreasonably does not necessarily mean that a child should be deprived of having a meaningful relationship with such parent in the future, provided that such parent act reasonably in a way which ultimately will result in the best interests of the child being fulfilled. The father has for a long period of time not had the opportunity to demonstrate that he is able to act reasonably in his dealings with the child. The orders proposed by the ICL – supported as they are by the father – involve the child spending time with the father in a strictly supervised environment where the likelihood of the father causing harm to the child is small. Facilitating time in a contact centre environment is both a protection for the child as well as a means of recommencing contact between the father and his daughter.
The court considers that, on an interim basis, contact ought to be resumed between the father and the child of the marriage in the best interests of the child. The child will benefit in the long term from ongoing contact with her father should time progress in the staged manner recommended by the ICL. The mother should encourage the development of such relationship, particularly in circumstances where she no longer has any relationship with the father which would give rise to hostilities between them.
Safeguards relating to removal of the child from the jurisdiction have properly been included in the proposed draft orders as well as other orders which facilitate contact, albeit in an institutionalised environment. Such orders as included in the draft proposed orders are all appropriate.

I certify that the preceding thirty-eight (38) paragraphs a true copy of the reasons for judgment of Judge Egan

Date: 5 February 2019

[2019] FCCA 244

5 February 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies