Kannan & Kannan

Case [2021] FCCA 1359

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kannan & Kannan [2021] FCCA 1359

File number(s): PAC 2277 of 2020
Judgment of: JUDGE OBRADOVIC
Date of judgment: 18 June 2021
Catchwords: FAMILY LAW – Interim Parenting – allegations of violence – non-compliance with orders – best interest of child – assessment of risk – children to live with father.  
Legislation: Family Law Act 1975 (Cth) s 61C
Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156
Number of paragraphs: 133
Date of last submission/s: 11 June 2021
Date of hearing: 9 and 11 June 2021
Place: Parramatta
Appearing for the Applicant:  Applicant in person and subsequently Ms Al Hashimi as amicus curiae
Counsel for the Respondent:  Mr Livingstone
Solicitor for the Respondents:  Taylor & Scott Lawyers
Appearing for the Independent Children's Lawyer: Ms Gina and Ms Rutkowska
Solicitor for the Independent Children's Lawyer: Ark Lawyers

ORDERS

PAC 2277 of 2020
BETWEEN:

MS KANNAN

Applicant
AND:

MR KANNAN

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

18 JUNE 2021

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.The mother's Applications in a Case filed 24 March 2021 and 8 April 2021 are dismissed.

2.Pursuant to s.65D(2) of the Family Law Act 1975 (Cth) the interim parenting orders made on 27 November 2020 are discharged.

3.The children, X born in 2015 and Y born in 2019, shall live with the father and to facilitate same, the mother shall deliver the children to the father's residence at 6pm on 18 June 2021.

4.Commencing on 14 July 2021, the children shall spend time with the mother as follows:

(a)For a period of 4 weeks:

(i)Each Wednesday from 5.30pm until 7.30pm; and

(ii)Each Sunday from 12.00pm until 6.00pm.

(b)Thereafter:

(i)Each Wednesday from 5.30pm until 7.30pm; and

(ii)Each alternate weekend from 3pm on Friday until 6pm on Sunday;

(c)And at all other such time as agreed to between the parents in writing.

5.The parents shall not hinder, prevent or discourage the children from initiating communication with the other parent at all reasonable times and, for the purposes of same, the parents shall do all acts and things necessary to ensure their mobile telephones (until such time as the children have their own mobile telephone) are able to facilitate communication with the other parent.

6.The parents shall be at liberty of communicating with the children by phone and/or video conferencing (such as FaceTime and other such applications) on the days they do not spend time with the children between 7pm and 7.30pm.

7.Except as otherwise agreed between the parents in writing and where changeover does not occur at the children’s school and/or day care, changeover shall occur at Coles Suburb B.

8.The parents shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.

9.The parents shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as…

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Kannan & Kannan [2021] FCCA 1359
Case
[2021] FCCA 1359
Decision Date

CaseChat Overview and Summary

In *Kannan & Kannan*, heard by Judge Obradovic, the court considered interim parenting orders concerning two children, X (born 2015) and Y (born 2019). The dispute arose from allegations of family violence made by the mother against the father, and the father's subsequent applications concerning the children's living arrangements and time with the mother. The mother had filed applications seeking interim orders, which were ultimately dismissed.

The central legal issues before the court were the assessment of risk to the children, the determination of the children's best interests in light of the allegations and non-compliance with previous orders, and the appropriate interim parenting arrangements. The court was required to consider the impact of alleged violence on the children and the parents' capacity to facilitate a relationship between the children and the other parent.

Judge Obradovic reasoned that despite the mother's extensive allegations of violence against the father, there was no material from external agencies such as the police or the Department of Communities and Justice to corroborate these claims. The court noted that the mother's allegations, while serious, were not supported by independent evidence. Furthermore, the court observed a pattern of non-compliance with previous interim orders by the mother, particularly in facilitating the children's time with the father. Applying the principles of the *Family Law Act 1975* (Cth), particularly the paramountcy of the children's best interests, the court concluded that it was in the children's best interests for them to live with the father on an interim basis.

Consequently, the court dismissed the mother's applications and discharged the previous interim parenting orders. The children were ordered to live with the father, with specific provisions for the mother to spend time with them, commencing with a four-week period of limited contact and then progressing to more regular weekend and weekday contact. The orders also included detailed provisions regarding communication between parents and children, communication between the parents themselves, and injunctions against the father concerning alcohol consumption and physical discipline. The court also ordered a family report to be prepared by a family consultant to further inform future decisions.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The mother's Applications in a Case filed 24 March 2021 and 8 April 2021 are dismissed.

2. Pursuant to s.65D(2) of the Family Law Act 1975 (Cth) the interim parenting orders made on 27 November 2020 are discharged.

3. The children, X born in 2015 and Y born in 2019, shall live with the father and to facilitate same, the mother shall deliver the children to the father's residence at 6pm on 18 June 2021.

4. Commencing on 14 July 2021, the children shall spend time with the mother as follows:

(a) For a period of 4 weeks:

(i) Each Wednesday from 5.30pm until 7.30pm; and

(ii) Each Sunday from 12.00pm until 6.00pm.

(b) Thereafter:

(i) Each Wednesday from 5.30pm until 7.30pm; and

(ii) Each alternate weekend from 3pm on Friday until 6pm on Sunday;

(c) And at all other such time as agreed to between the parents in writing.

5. The parents shall not hinder, prevent or discourage the children from initiating communication with the other parent at all reasonable times and, for the purposes of same, the parents shall do all acts and things necessary to ensure their mobile telephones (until such time as the children have their own mobile telephone) are able to facilitate communication with the other parent.

6. The parents shall be at liberty of communicating with the children by phone and/or video conferencing (such as FaceTime and other such applications) on the days they do not spend time with the children between 7pm and 7.30pm.

7. Except as otherwise agreed between the parents in writing and where changeover does not occur at the children’s school and/or day care, changeover shall occur at Coles Suburb B.

8. The parents shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.

9. The parents shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the children.

10. Each parent shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the children including sufficient details regarding such illness or condition and any treatment.

11. Neither parent shall denigrate the other parent or anyone associated with that parent in the presence or hearing of the children, and shall forthwith remove them from any third party doing so.

12. Neither parent shall harass the other parent about making changes to these Orders.

13. Neither parent shall discuss with the children these proceedings, or changes to these orders, or permit any other person other than the Independent Children's Lawyer to do so.

14. The parents shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required.

15. The father is restrained by injunction from:

(a) Consuming alcohol to excess while the children are in his care or for 12 hours before the children come into his care;

(b) Using any form of physical discipline on the children or otherwise hitting or assaulting the children or permitting any third party from doing so.

16. Pursuant to s.62G(2) of the Family Law Act 1975 (Cth) the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

17. The Family Report to deal with the following matters:

(a) Any views expressed by the children the subject of parenting orders sought in this case, provided that the children shall not be required to express a view in relation to any matter.

(b) The nature of the relationships of the children with each of the children’s parents and with significant other persons.

(c) The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.

(d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

(i) either of the parents: or

(ii) any other child, or significant person, with whom the children have been living.

(e) The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

(f) The capacity of each parent, or another person, to provide for the needs of the children, including emotional and intellectual needs.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the reporter thinks are relevant.

(h) Each parent’s attitude to the children and to the responsibilities of parenthood.

(i) Any family violence involving the children or a member of the children’s family.

(j) Such other issues as the Family Consultant considers relevant.

18. The parties shall attend all appointments with the Family Consultant and shall ensure the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant.

19. The Family Consultant may inspect the Court file.

20. Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

21. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

(a) A Children’s Court;

(b) A child protection authority;

(c) A State or Territory Legal Aid Authority; and

(d) A convener of any legal dispute resolution conference.

22. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

23. The matter is to be listed on a date to be advised following release of the Family Report.

24. The Independent Children’s Lawyer has liberty to have the matter restored to the list on 3 days’ notice.

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

Despite numerous subpoenas which were issued, there was no material from the police, the Department of Communities and Justice (“DCJ”), or any other source placed before the Court at the interim hearing, except as noted above. Agreed Facts The parties were married in 2014. The parties moved to Australia in 2014. There are two children of the relationship, X, who was born in 2015 and Y, who was born in 2019. The father left the former matrimonial home with X on 21 March 2020. Y remained living with the mother. X lived with the father from 21 March 2020 until 4 May 2020, after which time he lived with the mother. Between 4 May 2020 and 13 June 2020, the father did not spend any time with the children. On 25 May 2020, interim orders were made for the children to live with the mother and spend time with the father. On 13 June 2020 the father commenced spending supervised time with the children. There were no less than 18 supervised visits between 13 June 2020 and 25 October 2020. On 27 November 2020, orders were made by consent of the parties for the children to live with the mother and to spend time with the father each Wednesday from 5.30pm to 7.30pm and each Sunday from 12noon to 6pm and at any other time as agreed in writing. The children spent time with the father pursuant to the interim orders only on one occasion, namely 29 November 2020. Thereafter time was not facilitated by the mother, except as noted below at [20]. On 24 March 2021, the father attended X’s school and collected him. Thereafter the father retained X in his care until 20 April 2021, when he returned to live with the mother. The child did not attend school between 24 March 2021 and the end of the school term on 1 April 2021. On 20 April 2021, the mother collected X from school and X did not return to school until orders were made on 9 June 2021, directing the mother to re-enrol the child into school. The children spent time with the father on 10 June 2021 from 6pm to 8pm, pursuant to orders made on 9 June 2021. Chronology of Proceedings The substantive proceedings were commenced by the mother filing an Initiating Application on 18 May 2020. An Amended Initiating Application was then filed on 21 May 2020. The mother sought orders both on a final and interim basis that the children live with her, and that they spend time with the father as agreed between the parents, except for the purposes of the interim application the children’s time was to be supervised by an agreed supervisor. The matter was listed for first return, on an urgent basis, on 25 May 2020. At that time, the father had not filed any material. Both of the parties were represented at the first court event, and the matter was stood down to allow the parties time to have some discussions. During the course of the day, the docket judge said:But in the interim period, I don’t want the parties being in a situation where nobody knows where the children are living and the parties being in circumstances where they are frightened that one or the other might take a particular child off the other parent.(Transcript 25.05.2020, page 4, lines 26-30).

Evidence

Evidence Before The Court

There are some erroneous references by the Court, which are evident from the transcript for example on 29 March 2021, of references to previous orders for supervised time and then progressing to unsupervised time. There has never been an order for supervised time, but supervised time did occur for a number of months. There had initially been an order for time as agreed, and then for time on Wednesdays and Sundays and otherwise as agreed. The mother’s evidence As noted earlier in these reasons, the mother relies on a number of affidavits in support of the orders she now seeks on an interim basis. The mother’s evidence is summarised below.Affidavit of 18 May 2020 The affidavit of 18 May 2020 was the first affidavit the mother filed in the proceedings. It was on the basis of the material contained in that affidavit that she sought for a listing at short notice and for interim orders to be made on an urgent basis when the matter commenced, for the children to live with her and spend time with the father as agreed between the parents. The mother alleged in that first affidavit that the following incidents of physical violence were perpetrated by the father against her:13. One incident that I remember in particular was on or about 20 September 2014. Mr Kannan strangled me because I would not give him jewellery of mine or money that my father had given to me for living expenses in Australia. This incident took place in the kitchen of my sister in law and brother in laws (sic) place in Suburb D… 15. When I was about six to seven months pregnant with X. I could not do the housework. It was around this time that Mr Kannan strangled me again. He put his hands around my neck very tightly and he said to me “you will keep doing household duties even if you are pregnant”. His hands were around my neck for about three to four minutes. We were standing up and in the bedroom. I was screaming and found it very difficult to breath. Mr Kannan eventually let go of my neck….19. In 2018, X’s third birthday, I was in the kitchen. Mr Kannan started arguing with me about household duties. Mr Kannan then put his hands around my neck and strangled me. Whilst having his hands around my neck, he pulled me into the living room and pushed me towards the sofa and said, “don’t argue with me”. He kept his hands around my neck for about five minutes. X was watching. Mr Kannan said to me, “I will do like this to you if you argue back.”33. Around January 2020, I was in the washroom. Mr Kannan was in the bedroom with X and I could hear him hitting him. I came out of the room and said to Mr Kannan, “stop it”. Mr Kannan then grabbed my face with his hand and was squeezing my face tightly. I pushed Mr Kannan off me and said: “today is the last day”. I took my phone and went to leave the property to call the police. Mr Kannan said, “please don’t’ go, please don’t go, I am sorry.” The mother alleged in that first affidavit that the following incidents of physical violence were perpetrated by the father and/or his mother against X:18. The first time Mr Kannan was violent towards X that I can recall was when he was about five months old. It was the first week in 2015. Mr Kannan was drunk and yelling at me about uncomfortable housing arrangements. He said, “you are preventing me from being rich and you are both a financial burden on me”. X was crying and Mr Kannan then hit X with an open palm on his face. I tried to intervene, and Mr Kannan pulled my hair. I said, “I will go out of the property of you don’t stop”. He said, “don’t go” and then he fell asleep. I observed Mr Kannan hit X with an open palm on the face with considerable force a number of times”. 22. In about December 2018, Mr Kannan hit X with considerable force across the face. I stepped in front of Mr Kannan to try to stop him and Mr Kannan strangled me. I was about four months pregnant with Y. I said, “if you don’t stop, I will call the police”. Mr Kannan said, “please don’t call the police, I am sorry”. 23. On or about 26 January 2019, X wet his pants. I witnessed Mr Kannan him across the face, very hard. I tried to intervene, and my mother in law said, “Ms Kannan, stay away, let us teach him”. I said, “I am going to report you to police if you do not stop”. It was around this time that I became aware that Mr Kannan and my mother in law were rubbing mustard oil on X’s penis. I remember seeing that X was red around his genital area. X said to me words to the effect, “it hurts” and “I don’t like it”. Mr Kannan and I took X to the doctor. The doctor said to Mr Kannan words to the effect, “don’t do it”. The doctor prescribed some cream. 25. On an evening in the first week of May 2019, my mother in law locked X in the laundry room and was hitting him in the dark with no light on. I heard X screaming and crying “Daadi I am scared, please open the door.”… I was in the kitchen and noticed… what sounded like X trying to open the door. I was heavily pregnant and having contractions and could not intervene… On another occasion during that week I witnessed my mother in law hit X across the face with considerable force in an attempt to make him go to sleep in the afternoon. X was crying and said, “save me Mummy”. My mother in law left the room and went to a neighbour’s place…” 28. On or about 25 May 2019, X was sitting on a mattress in the living room. Mr Kannan and my mother in law were forcing him to eat uncooked Indian lentils. X said “I don’t like this”. Mr Kannan and his mother both said, “you have to eat this”. I came out of the bedroom where I had been with my daughter and I witnessed Mr Kannan grab X around his neck and throw him on the bed. Mr Kannan then hit X on the face a few times with an open palm. X was screaming. X was scared and then got the spoon and tried to eat the food. X vomited. I tried to get X and said, “don’t do this”. They both said, “get away from here”. I said, “I am going to report you”. Mr Kannan and his mother stopped. They knew I had been disclosing violence to Ms E and they were scared this would have an impact on Mr Kannan’s visa. 30. On 28 September 2019, Mr Kannan and his mother locked X in one of the bedrooms and they were physically abusing him in an attempt to teach him how speak. I was in the living room with my daughter. I saw Mr Kannan and his mother take X into one of the bedrooms. Mr Kannan had an aluminium stick. I do not know how this stick came into our home. I heard Mr Kannan hitting X with aluminium stick. I heard Mr Kannan throw X against the door and it sounded like he was slapping him. X was screaming. Mr Kannan and his mother would not let me in the room. I was so distressed. I yelled out to Mr Kannan and his mother and said, “I am calling the police”. I contacted the 000, and by this time they had let X out of the room. I told police that it was a test call and that if I needed further assistance I would call again. Mr Kannan said, “please don’t call police, we will stop”. 33. Around January 2020, I was in the washroom. Mr Kannan was in the bedroom with X and I could hear him hitting him. I came out of the room and said to Mr Kannan, “stop it”. Mr Kannan then grabbed my face with his hand and was squeezing my face tightly. I pushed Mr Kannan off me and said: “today is the last day”. 34. On or about 1 March 2020, I had to leave for work in the morning. Mr Kannan, his mother and X were in the living room. I witnessed Mr Kannan and his mother trying to force X to eat food he did not like for breakfast. Mr Kannan hit X on the face with an open palm. X was crying and kept on vomiting and said to me, “please save me mumma”. X had a red mark on his face from being hit. I said, “stop it”. I tried to get to X but Mr Kannan stood in front of me. Mr Kannan screamed at me and said, “just get out and get money from work”. I said, “I am going to call the police if you keep doing this”. Mr Kannan said, “please don’t call the police”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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