KALEEL & MAROUN

[2020] FCCA 2339

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALEEL & MAROUN [2020] FCCA 2339

Catchwords:
FAMILY LAW – Parenting – interim orders – four year old child – allegations of violence – assessment of risk – child to live with mother and spend regular and frequent time with father.

Legislation:

Family Law Act 1975 (Cth), ss.69ZT, 67Q, 67T, 67V

Cases cited:

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS KALEEL

Respondent: MR MAROUN

File Number: PAC 3663 of 2020

Judgment of: Judge Obradovic

Hearing date: 27 July 2020

Date of Last Submission: 27 July 2020

Delivered at: Parramatta

Delivered on: 29 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Abdelraheem

Solicitors for the Applicant: Algalele & Co Solicitors

Appearing for the Respondent: Mr Hamka

Solicitors for the Respondent: King & York Lawyers

PENDING FURTHER ORDERS

1. The child X born in 2016 shall live with the mother.

2. The father shall deliver to the child to the mother’s residence (noting that as at the date of the orders this is the maternal grandparents’ residence) at 6pm on 29 July 2020.

3. The child shall spend time with the father as follows:

   (a)Commencing on 7 August 2020, and each alternate week thereafter from 6pm on Friday to 6pm on Sunday;

   (b)Commencing on 5 August 2020, and each week thereafter, from 5pm on Wednesday to 9am on Thursday; and

   (c)At all other times as agreed to between the parents in writing.

4. Other than as provided for in Order 2 above, the father is to collect the child from the mother’s residence at the commencement of the child’s time with the father and the mother is to collect the child from the father’s residence at the conclusion of the child’s time with the father.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X born in 2016 and request the Legal Aid Commission of NSW to provide such representation.

2. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

4. The mother is restrained by injunction from physically disciplining the child, or permitting or allowing any third party from doing so.

5. The mother shall undertake mental health assessments conducted by an appropriately  qualified practitioner, as follows:

   (a)Within 14 days from the date of these orders, the mother shall obtain a referral for such assessment;

   (b)That forthwith upon obtaining the said referral, the mother shall arrange to undertake the first available assessments and inform the Independent Children’s Lawyer and the father’s solicitors of the date of those assessments;

   (c)That the mother shall provide copies, as available to her, of assessments undertaken and treatment given in the past to those conducting the said assessments and her referring medical practitioner;

   (d)That the mother shall provide the Independent Children’s Lawyer and the father’s solicitors with copies of the said assessments within fourteen (14) days of receiving same; and

   (e)That the mother shall use her best endeavours to comply with any treatment recommended. 

6. List the matter for directions at 9.30am on 27 November 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3663 of 2020

MS KALEEL

Applicant

And

MR MAROUN

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (“the Act”) being delivered orally to ensure the least delay possible.  The Court heard on Monday this week, being the first day of a busy duty week, the mother’s urgent application for a recovery order in respect of the parties’ only child, X, who is four years old.

2. The Initiating Application was filed on 22 July 2020, with the Registrar making a determination to list the matter at short notice.  The father had, by the time of the first listing, filed a detailed Affidavit, Notice of Risk and a Response. 

3. The parents are in significant dispute as to where their child should live both on an interim and a final basis. While the mother’s application sought a recovery order pursuant to s.67Q of the Act, she also sought a raft of interim parenting orders. The father, likewise, sought interim parenting orders.

4. Neither party pressed any of the interim relief sought relating to the parties’ property although the Court noted during the hearing that the father presently lives with the child in the former matrimonial home, that the father does have savings of over $30,000, and that he is employed.  While the mother, on the other hand, does not have any property in her name, she is without funds and is living in her parents’ home after the parties separated on 10 July 2020.

5. The Court, of its own motion, asked whether the father would be prepared to provide an undertaking not to dissipate any of the $30,000 which are referred to in his Financial Statement and not to sell or further encumber the former matrimonial home. The father’s legal representative has today indicated that the father is prepared to provide an undertaking to the Court in respect of those funds and the former matrimonial home subject to his reasonable living expenses and the payment of legal fees as may be required to be paid.

6. While recovery orders are usually appropriate only where there are parenting orders in place such that a child may be recovered, there is nothing in the Act to prevent the Court from making such an order in circumstances where there is no parenting order in existence. Indeed the Act provides in s.67Q that the order is an order requiring the return of a child to a parent of the child.

7. The Court has the power pursuant to s.67T of the Act to make a recovery order given that the mother is, at the very least, a person concerned with the care, welfare and development of the child. In proceedings for a recovery order, the Court may, subject to s.67V, make such recovery order as it thinks proper. Pursuant to s.67V, in deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interests of the child which are a paramount consideration.

8. The principles in respect of interim hearings are well known including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general and the Court is often in a position where it is unable to make findings of fact.  Even in such constrained circumstances, the Court is still required to determine the applications before it. 

9. Not only do these proceedings raise the issue of a recovery order, they also raise the issue of competing live with applications and an application for supervision of the mother’s time with the child.  In those circumstances, a risk assessment is to be undertaken. This is done by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.

10. There are a few agreed facts between the parties. They are as follows:

    a)The parties were married in 2014.

    b)The parties separated on 10 July 2020.

    c)There is one child of the relationship, X, born in 2016, who is the subject of these proceedings.

    d)The parties are cousins and the wife came to Australia on a visa sponsored by the husband.

    e)The wife’s family also migrated to Australia.

    f)Both parties are Australian citizens.

    g)The husband works fulltime albeit since earlier this year, due to the COVID-19 pandemic, he has been working from home.

    h)The wife has not worked since migrating to Australia.  She was engaged in TAFE studies for a period of about 18 months after X was born, it appears in or about 2018 to 2019.  She has not completed those studies.

11. The mother raises some very serious allegations of family violence against the father.  The father denies those allegations in their entirety.  The allegations include:  

    a)Control of finances to the extent that the mother was provided with a limited allowance and was required by the father to keep a record of all of her spending almost to the last dollar. 

    b)Verbal abuse of the mother by the father, this included humiliation of the mother and the maternal family by amongst other things referring to them as stupid.  The mother says that the father also called her a donkey; and

    c)From at least July 2019, when the parties argued, the father would always end up pulling the mother’s hair, and that when there were disagreements between the parties, the father would shout at the mother, say hurtful things to her and bring his fists towards her face and yell, thereby intimidating her.  When this happened, the mother would cry feeling helpless. 

12. The mother also asserts that the father was generally not supportive of her, that he refused to do any housework or take part in child rearing and that all of these tasks were the domain of the mother.

13. The mother asserts that the father had requested a divorce in July 2019, and that at the time he threatened that he would take the child away from the mother.  The parties reconciled but such threats were said to continue.

14. The mother asserts that the father used his superior financial position in making such threats by saying that he could afford a solicitor and barrister and that the law was on his side.  The mother says that she lived under constant stress and that if she did not listen to the father, he would divorce her and take away their child.

15. The mother says that the father’s brother has mental health problems such that in the past, he has attacked his own mother with a knife and that he has broken things in his home.  The mother says that the paternal grandmother often gets angry, that she has panic attacks and fits and that she would hit herself.

16. As noted earlier in these Reasons, the parties separated on 10 July 2020.  Their accounts are, unsurprisingly, different as to what occurred on that day. The mother alleges that she was hit in the face by the paternal grandmother and that the father twisted her arm and that he and his mother forced her out of the former matrimonial home.  This occurred after the mother had said that she wanted to go to her parents’ home in respect of some items at which point in time the father refused to give her permission to take X with her.

17. The father agrees that there was an argument in similar circumstances but says instead that the mother was yelling and swearing at him and that ultimately she pushed the paternal grandmother.  The mother has been charged with common assault and two provisional Apprehended Domestic Violence orders have been made:  one for the protection of the paternal grandmother including an injunction preventing the mother from coming within 100 metres of the paternal grandmother’s home – on what basis that order was made is entirely unclear on the facts – and one for the protection of the father preventing the mother from assaulting, harassing and molesting him or deliberately destroying his property.  Once again it is not entirely clear on what basis that order was made.

18. The Apprehended Domestic Violence Orders have been made on an interim basis, and the mother is contesting not only the Apprehended Domestic Violence Orders but also the charge of common assault.  As at the date of the interim hearing, the police have not taken any action against the father or the paternal grandmother despite the mother’s statement to them.  The police are of the opinion that the mother lied to the police about what actually happened and that she was the primary aggressor of the situation and that she did, in fact, push the paternal grandmother out of anger.

19. The police fear that the mother will act in such a manner in the future and as such the police have applied for the apprehended domestic violence orders.  It is difficult for this Court to understand, having regard to the grounds of the application, on what basis the police hold such fears. According to the grounds of the application of the Apprehended Domestic Violence order, the father told the mother that she could go to her parents’ house for the purpose of dropping off some things but that she was not allowed to take their son with her as he did not like the mother taking their son to her family’s house.

20. This particular matter speaks to the allegations of coercive and controlling behaviour of the father which the mother deposes to in her Affidavit.  It also possibly speaks to the father’s allegations about the behaviour of the maternal family.  However, there is nothing recorded in the police documents before the Court, or in other documents before the Court annexed to the parties’ material, which indicates that the father was concerned about the child’s safety at the maternal family’s home or with the mother.

21. The father alleges, in his sworn evidence, that the mother was not the primary carer of the child but that she was rather an entirely disinterested mother who spent most of her time laying about watching soap operas and the like and that it was the paternal grandmother who was primarily responsible for the child.

22. The father says that he was responsible for carrying out house cleaning, cooking, washing clothes, performing repairs and maintenance and other like tasks. The father says that his mother also contributed significantly to such tasks even during periods when the mother was not engaged in studies.  The father says that he felt regularly overwhelmed during the parties relationship because the mother refused to work and contribute financially, and as he was not only the sole breadwinner but also responsible for homemaker tasks as well as caring for X. 

23. The father also says that he felt bad for his mother who was apparently regularly cleaning up after the mother and maintaining the parties’ home during the hours that the father was at work.  The father alleges that the mother would often neglect X, and that the maternal grandmother was the one caring for him during the day. This is alleged in circumstances where the paternal grandmother was not living in the home of the parties, and it is unclear on the father’s evidence how often the paternal grandmother was said to be spending time at the home. 

24. The father says that the mother was verbally abusive towards him and that she belittled him by calling him a useless father who could not provide for his family.  The father says that he tried talking to both the mother and the maternal family about the mother’s behaviour but that they became offended and defensive when he raised these issues. 

25. The father says that the mother threatened to harm his professional reputation.  The father asserts that the mother was often unstable, erratic and unable to manage herself in a civil manner.  The father says that there were countless occasions when the mother punched him or beat him using a closed fist.  The father had not spoken to the police when such alleged assaults occurred or, indeed, at the time of his complaint in respect of the mother’s conduct on 10 July 2020.

26. The father says in his affidavit:

    I was scratched and abused by Ms Kaleel on many occasions.  These incidents became so frequent, I simply cannot recall the exact number of times this occurred.

27. The father alleges that the mother is both physically and verbally abusive towards X. He says that he has observed the mother smack X across the face and the top of his forehead, and that he and the mother had disagreements about such physical discipline of the child.  The father says the mother struck the child with a spatula or a cooking spoon on his back, neck and legs.  The father says he felt helpless when the mother hit X in this manner.  He says that he would jump in front of the child to protect him, grab him and hug him and remove him from the room.

28. The father speaks of an incident alleged to have occurred on 3 July 2020 where he recorded the child, albeit the recording is not in evidence, saying to him that the mother had hit him and had thrown a can at the child. 

29. The father says that he is concerned about the mother’s mental health as she has disclosed to him that she was previously diagnosed with major depression and other mental health conditions after fleeing Country B due to the war.  The mother’s affidavit is silent on this issue.  The father says that he is concerned that the mother might be suffering from other undiagnosed mental health issues that are causing her aggressive, violent and abusive behaviour.  The father also says he has concerns about the maternal family as they seem to acquiesce in the mother’s aggressive behaviour towards him and the child.

30. The mother denies that she is abusive and violent not only towards the father but also towards the child.  She also denies that she pushed the paternal grandmother on 10 July 2020 as alleged by the father and the paternal grandmother. 

31. The submissions made on behalf of the mother were not particularly helpful.  They focussed on the assertion that the mother had been the child’s primary carer and that she denied the allegations of aggressive and abusive behaviour towards the father, the child and the paternal grandmother. 

32. The submissions on behalf of the father focussed, and with respect rightly so, on the weighing up of the risks which have identified in the parties’ respective cases. The submissions made in the father’s case were to the effect that the child was at an unacceptable risk of harm if he was to live with the mother or spend unsupervised time with the mother.  No submission was made that there was a risk of harm to the child flowing from the violence allegedly perpetrated by the mother on the father. 

33. While physical chastisement of a child is not against the law, the allegations by the father speak of something much more serious.  The father alleges hitting with force and leaving marks on a little, defenceless child.  The risks which might be posed to a child who is subjected to such behaviour can be serious (although these matters were not specifically addressed in submissions).

34. The father does give evidence that he has tried to stop the mother from engaging in such behaviour towards the child and that he has comforted the child after the mother hit him.  However, it appears on the evidence, notwithstanding the dispute about the paternal grandmother’s involvement in the care of the child, that as between the parents at least, the mother was a stay at home mother who was primarily responsible for meeting the child’s needs.

35. The father has always worked and was away from the home for most of the day due to his work commitments except for after the COVID-19 pandemic lockdown and subsequently.  Logically, the suggestion that the father was primarily responsible for all household tasks as well as child related responsibilities given that he worked full time is a difficult suggestion to accept, that is, it is improbable but not impossible.  The Court does not make a finding of fact either way. 

36. The Court notes that the paternal grandmother, albeit it is early in the proceedings, it is not a witness in the father’s case.  In these circumstances, a Jones v Dunkel[1] inference would be open to the Court.  However, it is not an inference that is drawn at present as the Court is alive to the fact that the matter came on very quickly for hearing and that the father had very limited time to prepare his case. 

    [1] (1959) 101 CLR 298

1. The Court also finds that given the complaint made by the father and the paternal grandmother to the police arising out of the incidents said to have occurred on 10 July 2020, and when compared to the serious assaults the father alleges against the mother towards the child, it is improbable that the father would stand by if such assaults were occurring and not make a complaint to the police.  Once again, this is not a finding of fact, it is just a weighing up of the risks which might flow from the alleged behaviour.  In any event, there is no evidence apart from some red marks, which one might assume would appear very easily on the skin of a young child, of injury to the child.

2. The child has never been taken to a medical practitioner by the father as a result of the mother’s alleged assaults upon him.  There is no evidence that the father has attempted to assist the mother in getting medical assistance in respect of her alleged mental health issues.  In circumstances where, on the father’s own evidence, he organised for the mother to study at TAFE, it is difficult to accept that he could not, or would not, similarly, have been able to organise for the mother to attend upon a medical practitioner, if he was as concerned as he says.

3. Certainly, on the father’s case, the mother has admitted to him of her mental health difficulties in the past.  In light of that evidence, in the father’s case, it is counterintuitive to suggest that the mother or her family might be ashamed or similar to have the mother receive further treatment if any was required, although, it is possible that this occurred.

4. The allegation in the mother’s case of verbal and physical abuse of her not only by the father, but also by the paternal grandmother in the child’s present, also pose a significant risk to the child if such behaviour is to occur, albeit, these matters were not the subject of any submissions.

5. Not all of the allegations made by the parties are the subject of analysis mentioned in these reasons.  That does not mean that they have not been considered.  Consideration does not mean discussion.  The child has not spent any time with the mother since the 10 July 2020, putting aside the brief interlude when the police were present on 13 July 2020.  In the life of a little child, this is a long time.  He must be missing his mother, and she, no doubt, is missing him.  There is no reasonable explanation in the father’s case as to why the child has not spent any time with the mother since the parties separated.  Particularly noting that the maternal family lives in very close proximity to the former matrimonial home, and that this is where the mother has been living since separation. The father tells the Court that there has been no request.  This is not a child focused answer. 

6. It is in X’s best interest, at least in the interim period, that he live with the mother.  Such an order will allow the restoration of the child/mother relationship that was in existence prior to 10 July 2020. 

7. The risks which have been identified in the father’s case may be dealt with by injunctive orders preventing the mother from physically disciplining the child or permitting or allowing any third party from doing so.  They can be dealt with by the child spending time with the father on a regular basis, and they can be dealt with by an order requiring the mother to obtain a mental health assessment.

8. Given X’s young age and the father’s availability and capacity to care for him, and particularly in light of the matters referred to above, or earlier in these reasons, it is appropriate that the child spend regular weekly time with the father in addition to weekend time.

9. The orders which the Court makes today are in one sense stopgap orders, and they may only be in place for a very limited time depending on what happens further in these proceedings.  They are only interim orders.  If there is other evidence that comes to light, or other events which occur, there is no doubt that a prompt application will be made by either one or both of the parties.

10. In respect of parental responsibility, given that there is no evidence of any immediate long-term issues which might require a parental decision, the Court declines to make any order for parental responsibility.  This leaves the situation in accordance with the relevant legislative provisions.

11. Whilst it is not a matter which the Court had previously raised with the parties, it seems appropriate in this matter for an independent children’s lawyer to be appointed. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 29 July 2020