Kannan & Kannan
[2023] FedCFamC2F 226
•3 March 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kannan & Kannan [2023] FedCFamC2F 226
File number: PAC 2277 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 3 March 2023 Catchwords: FAMILY LAW – Parenting – Allegations of physical, sexual and financial abuse – No findings of fact sought – No risk established – Parenting capacity – Children to live with father and spend time with mother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA Cases cited: Banks & Banks [2015] FamCAFC 36
Faizan & Jameel [2021] FedCFamC2F 194
Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
M & M (1989) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 142 Date of last submission/s: 21 February 2023 Date of hearing: 20-21 February 2023 Place: Parramatta Counsel for the Respondent: Mr Livingstone Solicitor for the Applicant: Byron & Associates Solicitor for the Respondent: Taylor & Scott Lawyers Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Harb Lawyers
Table of Corrections 14 May 2024 At [19] the words “The phrase “unacceptable risk” does not appear anywhere in the Act.[1] However,” are deleted.
[1] Isles v Nelissen [2022] FedCFamC1A 97, [58] (“Isles v Nelissen”).
ORDERS
PAC 2277 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KANNAN
Applicant
AND: MR KANNAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The father, Mr Kannan, shall have sole parental responsibility for the children X (born 2015) and Y (born 2019) (“children”), subject to order 2 below.
2.In his exercise of parental responsibility, the father shall:
(a)Advise the mother prior to any decision made concerning the children in his exercise of sole parental responsibility;
(b)Allow the mother at least seven (7) days to consider the father’s proposal and respond in writing to the father; and
(c)Take into consideration any views expressed by the mother prior to making a final decision.
Live with and Spend Time
3.The children shall live with the father.
4.The children shall spend time with the mother during school term, as agreed between the parties and failing agreement in a two-week cycle commencing the first Wednesday following the making of these Orders, as follows:
(a)Week 1: from the conclusion of school (or 3pm if a non-school day) on Wednesday until 6pm on Thursday;
(b)Week 2: from
after schoolthe conclusion of school on Friday (or 3pm if a non-school day) until the commencement of school (or 8am if non-school day) on the following Monday; and(c)Such other times as agreed between the parties in writing from time-to-time.
School Holidays
5.Until Y commences school, the children shall spend time with the mother:
(a)During term 1, 2 and 3 school holidays from the conclusion of the last day of school until 4pm on the middle Saturday of the school holidays; and
(b)During term 4 school holidays from 10am on the first Saturday of the school holidays for 7 days, and then each alternate week thereafter for a period of 7 days.
6.Once Y commences school, the children shall spend time with the mother:
(a)In even numbered years for the first half of each school holiday period commencing
onfrom the conclusion of the last day of school until 10am on the middle Saturday of the school holiday period; and(b)In odd numbered years for the second half of each school holiday period commencing at 10am on the middle Saturday of the school holiday period to 4pm on the last day of the school holiday period.
Special Occasions
7.Notwithstanding any other order to the contrary, the children shall spend the following special occasions with each of the parties respectively unless they are already doing so at the time:
(a)With the mother, from 9am until 5pm, on Mother’s Day;
(b)With the father, from 9am until 5pm
untilon Father’s Day;(c)With the mother on the mother’s birthday from the conclusion of school until 6pm or if on a non-school day, then from 9am until 5pm.
(d)With the father on the father’s birthday, from the conclusion of school until 6pm or if on a non-school day, then from 9am until 5pm.
(e)With the party not otherwise spending time with the children on their respective birthdays where the children shall move together between the parties and not individually:
(i)From the conclusion of school until 6pm; or
(ii)If a non-school day, from 11am until 2pm.
Communication
8.The parties shall not hinder, prevent or discourage the children from initiating communication
fromwith the other party at all reasonable times and, for the purposes of same, the parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the children have their own mobile telephones) are able to accept communication from the other party.9.The parties 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.
Changeover
10.For the purpose of facilitating changeover other than on those occasions when either party collects or returns the children to or from school, the party who is about to commence his or her time with the children shall collect them from the outside of the other party's residence, unless otherwise agreed between the parties in writing.
International Travel (Section 65Y)
11.The parties shall be permitted to take the children outside Australia on the following conditions and/or as otherwise agreed between the parties in writing:
(a)Such travel shall take place only during the children's school holiday periods they are spending with the travelling party pursuant to these Orders or during a period that includes religious celebrations overseas;
(b)The travelling party shall provide the other party details of their proposed travel, including an itinerary and details of where the children will be staying and how they will be able to be contacted during the period of travel, not less than six weeks prior to the intended departure date;
(c)The travelling party shall provide copies of his or her and the children's flight tickets to the other party not less than two weeks prior to the intended departure date;
(d)The travelling party shall facilitate telephone communication between the non-travelling party and the children not less than two times per week of travel; and
(e)The non-travelling party shall do all acts and things and sign all documents necessary as requested by the travelling party within seven days of a request so as to facilitate the children's intended travel, subject to compliance with Orders 11(a) – 11(c) herein.
12.The parties shall do all acts and things and sign all documents necessary to have passports issued and/or renewed for the children within seven days of a request for the purpose of facilitating the travel referred to in Order 11 herein, with the intended travelling party bearing the costs of same.
13.The father shall retain the children's passports but shall provide them to the mother not less than two weeks in advance of her intended travel pursuant to Order 11 herein with such passports being returned to him within seven days of the mother returning to Australia.
Miscellaneous
14.The parties 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.
15.The parties 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.
16.Each party 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.
17.The parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them may receive a copy of the children's school reports, newsletters and other relevant notices issued by their school.
18.Neither party shall question the children about events nor conversations in the household of the other party or use corporal punishment to discipline the children or allow a third party to do so.
19.Neither party shall denigrate the other party nor anyone associated with that party in the presence or hearing of the children, and shall forthwith remove them from any third party doing so.
20.Unless otherwise agreed between the parties in writing, neither party shall discuss with the children these proceedings or proposed changes to these Orders, or permit any other person to do so.
21.The parties 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 including but not limited to medical and education service providers.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kannan & Kannan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
INTRODUCTION
These are final parenting proceedings concerning the parties’ two children, X born 2015 and Y born 2019. The applicant mother and the respondent father separated on a final basis in or about March 2020.
Following separation the parents engaged in a tug-of-war in respect of the children’s living arrangements, of which the biggest victim was little X, but both children were clearly affected.
X and Y have been living with their father since June 2021, when the Court made interim orders that they do so. The children have accordingly been spending time with their mother each alternate weekend and one day during the week (although there have been some difficulties associated with that time). The interim judgement in Kannan & Kannan [2021] FCCA 1359, should be read together with these Reasons for Judgment.
Issues for Determination
The mother’s case is that the father has sexually and physically abused the children, that he has physically and emotionally abused her while they were together, and emotionally abused her after separation. The mother does not seek any findings of fact in respect of the allegations she makes. Her case is that despite the very serious allegations of abuse, the children should live with the father for half the time and with her for half the time.
The father’s case is that he should have sole parental responsibility, that X and Y should continue to live with him and his partner, and spend limited time with the mother. The basis for the father’s case is that the mother, inter alia:
(a)has a history of making serious and unfounded allegations against the father which negatively affects the children;
(b)has a tendency to not comply with court orders with relation to existing spend time provisions; and
(c)does not have a capacity to support the children’s relationship with their father.
The ICL’s case is that the mother and father have a highly conflictual relationship, that the mother’s repeated allegations against the father are not supported by fact and harm the children and that the children would be at an unacceptable risk of harm if they were in the mother’s care for an extended period of time. This is the basis for the ICL’s submission that the father should have sole parental responsibility and that the children should live with the father. Before the commencement of the proceedings, the ICL’s position was that the children should spend no time with the mother however by the end of the hearing, the ICL’s position was that the children spend both weekend and weekday time with the mother.
Consequently, the key issues for the Court’s determination are:
(a)Whether the mother’s allegations against the father pose an unacceptable risk of harm for the children when in the care of the father;
(b)Whether the mother’s continued allegations against the father and her parenting capacity pose an unacceptable risk of harm for the children when in the care of the mother;
(c)Each party’s ability to comply with court orders and facilitate the relationship with the other parent; and
(d)Subsequently, the allocation of parental responsibility and whom the children should live with and spend time with.
Notwithstanding that the mother does not seek any findings of fact in respect of the allegations she makes against the father, it is nonetheless important to consider the allegations which have been made in order to determine whether the children might be at risk of harm, what that risk might be and to weigh up those risks.
In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating the whether the risk will occur, but also the potential consequences of the risk being realised.[2] The High Court has stated that “the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]…”[3]
[2] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62] to [74].
[3] M & M (1989) 166 CLR 69 at 78.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[4]
[4] See Slater & Light [2011] FamCAFC 1 at [45]; Mehmood & Ali [2021] FedCFamC2F 194.
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[5] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[6]
[5] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121].
[6] McCall at [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7].
[7] MRR v GR [2010] HCA 4 at [15].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is that discussion does not mean consideration.[8]
[8] Banks & Banks [2015] FamCAFC 36.
The phrase “unacceptable risk” does not appear anywhere in the Act.[9] However, the “provisions of ss.60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.”
[9] Isles v Nelissen [2022] FedCFamC1A 97 at [58].
As the Full Court held:
The assessment of risk is an evidence-based conclusion… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[10]
DETERMINATION
[10] Isles v Nelissen [2022] FedCFamC1A 97 at [85].
Relevant Facts
The mother and father married in 2014 in Country N and commenced cohabitation thereafter.
The parties moved to Australia in late 2014. At first, the mother held a student visa and the father a dependent spouse visa.
The parties began renting their own apartment in City G in late 2014.
X was born in 2015.
The father took two months off work to care for X and the mother, and subsequently returned to work. The father says that he was the primary carer for X at all times except when he was at work.
The mother returned to work in or about late 2015.
The father says that, save for the periods when his mother visited Australia from Country N and from June to October 2019 he would work night shift and care for X during the day. Between June to October 2019, X attended a child care centre for two days a week, being when the father worked day shifts.
The father says that the parties separated under the same roof in or about October 2018. The father says that they stayed living together because of financial reasons and threats made by the mother to him that if he left the home, she would make allegations of abuse which would result in him having to return to Country N and X living with the mother.
Y was born in 2019 whilst the parties were separated under the same roof.
The mother was the primary carer for Y until she returned to work in or about late 2019 at which point the father, the father’s mother and a hired babysitter cared for Y.
In or about March 2020, the father left the matrimonial home and commenced residing with his partner, Ms M.
Following the parties’ physical separation, X lived with the father whilst Y remained with the mother.
Post separation, the parties had an ad hoc arrangement for the children to spend time with the parents. This mostly comprised of Y spending time with the father while X was spending time with the mother.
In early 2020, the parties agreed for the mother to pick X up from school to spend time with him and for X to be returned to the father later in the evening. The mother unilaterally decided to retain X in her care and organised for her lawyer to send the father a letter stating that the mother would not be returning X to the father. The father attempted to organise spend time with the children after this date however the mother, through her lawyer indicated that she did not consent to the father spending any time with the children.
On 18 May 2020, whilst both of the children were living with the mother and spending no time with the father, the mother commenced these proceedings seeking sole parental responsibility and that the children live with the mother and only time with the father by mutual agreement.
On 15 May 2020, the Court made orders that the children be added to the Airport Watch List.
In or about June 2020, the father commenced spending supervised time with the children each week.
On 27 November 2020 the Court made interim orders that the children live with the mother and spend time with the father on Wednesdays and Sundays, with such time not being supervised.
The father first spent time with the children in accordance with these orders on 29 November 2020.
The father received an email on 2 December 2020 and later on 4 December 2020 from the mother’s lawyer stating that the mother would not be facilitating any time because the mother had alleged that the father had sexually assaulted Y in late 2020 and that the Department of Communities and Justice (“DCJ”) recommended that time cease while an investigation was carried out. The father contacted DCJ and was informed that this was not their advice.
The matter was listed before the Court on 10 March 2021 whereby the Court confirmed the 27 November 2020 interim orders should continue to be adhered to.
In early 2021, the father picked X up from school and unilaterally retained him in his care in breach of the orders of the Court. On 29 March 2021, the Court ordered the father to return X to the mother. The father failed to return X to the mother in accordance with the orders.
In early 2021, the father received a call from X’s school principal informing him that the mother had collected X from school early. Thereafter the mother retained X in her care. The mother failed to send X to school between early 2021 and mid-2021 and says that she was home-schooling him during these periods.
On 28 April 2021, the proceedings came before the Court again and the Court ordered that spend time must continue in accordance with the 27 November 2020 interim orders. It is fair to say that from this date until 18 June 2021 the mother routinely failed to facilitate spend time or communication with the father in accordance with court orders.
On 9 June 2021 the Court ordered that X be re-enrolled at O School.
On 18 June 2021, the Court made a second set of interim orders that remained in force for the remainder of the proceedings. These orders provided that the children were to live with the father and spend time with the mother each Wednesday commencing at 5:30pm and each alternate weekend commencing on alternate Fridays at 3pm. The spend time orders were to commence from 14 July 2021.
In June 2021, the mother alleged that the father was intoxicated in the presence of the children – an allegation that the father denies. In July 2021 the mother sent the father a message as she had concerns that Y had a bruise on her nose which she observed over video call. The father told the mother that there was no bruise on Y’s face. Regardless, two police officer attended the father’s residence to check upon Y – they were satisfied that there was no bruise on her face.
On 21 July 2021, the mother first spent time with the children in accordance with the 18 June 2021 orders. The father says that the mother fed the children too many lollies during this time and subsequently the children were ill when they returned home.
From 17 November 2021, the mother appeared to have difficulty with complying with the existing orders. In particular, the mother sought to commence time later than stipulated. The father made efforts to accommodate the mother’s schedule so that time could continue, albeit at a lesser extent.
On 3 December 2021 the father agreed for the mother to spend time with the children from 10am Saturday rather than 3pm Friday. Later on 3 December 2021, the father sent the mother an email which stated that the changeover for weekend time had been changed from 3pm Friday to 10am Saturday by agreement. It does not appear that such agreement existed. The mother did not reply to this email.
On 16 May 2022, the mother messaged the father seeking to collect the children at 6pm on Friday rather than 3pm. The father stated again that the parties had already agreed to amend changeover time to 10am Saturday. The mother stated that there was no such agreement. After this correspondence the father informed the mother that spend time would revert back to being in accordance with the 18 June 2021 interim orders and the mother agreed to this proposal.
In mid-2021, the father and his partner were served by police with private ADVO applications filed by the mother. The mother alleged that the father’s partner stalked the mother. The father and his partner contested the ADVO applications and the proceedings were set down for mention on three dates in 2021 at the Local Court. In late 2021, the mother decided to withdraw the applications and they were dismissed by the Court. No final or interim ADVO was made.
On 29 June 2022 the family report in these proceedings was released. On 7 July 2022, the addendum to the family report was released.
Credit and Findings
The mother’s evidence was at times problematic, not only because of the implausibility of some of the assertions she made, but also because of the inherent contradictions within her own evidence.
Examples of the mother’s implausible and contradictory evidence
Court’s Reasons for Judgment in Kannan & Kannan [2021] FCCA 1359
On 18 June 2021, the Court delivered its reasons for judgment in respect of interim parenting orders for Y and X, which provided the following summary of the mother’s evidence at the time:
Affidavit of 26 February 2021
…
[63]On Sunday, 29 November 2020 the children spent unsupervised time with the father for the first and only time after the making of the orders on 27 November 2020.
[64]The mother says that after the children’s time with the father, [Y] was not behaving like she usually did and that [X] had told her “Papa was changing [Y’s] clothes and her nappy and [Y] was crying a lot”. Apparently, that night [Y] did not sleep well which was unusual for her. She then saw a photograph of the children with the father and the paternal grandmother on WhatsApp, in which [Y] was wearing different clothing to that which the mother had dressed her in that morning. The mother said that the picture caused her concern, “Given the way that I had dressed her for the visit, there was no reason or the father to take [Y’s] clothes off”.
[65]The following day the mother noticed [Y] to continue to act strangely. She noticed redness around her vagina, and [Y] attempting to put toys down the back of her pants, something she had not done before. [Y] was also apparently making “unusual circular movement with her hip”, and was unable to pass her stool, grabbing her stomach and making strange noises.
[66][In late] 2020, the mother observed [Y], while [Y] was in the shower, put her finger into her vagina, jabbing her finger in. This she had not observed the child to do before. The mother then goes on to say that she tried to put a toy in her bottom, something which she had also never done before.
[67]The mother called the Child Protection Helpline and was apparently told “this is sexual abuse” and to stop contact between the children and the father until further notice. She called the Child Protection Line on two other occasions over the following two days, and was apparently told not to make the children available to spend time with the father.
[68][In late] 2020, the mother made a report to the police. She says she was told that if she had concerns to take the child to a doctor.
[69]The mother did not make the children available to spend time with the father on 2 December 2020.
[70][A short time later], the mother called the DCJ. She says that she was told on that occasion that the DCJ was not running an investigation into the matter. That same day, the DCJ emailed the mother’s solicitor and advised as follows:
I am aware that today the father has been provided a (sic) email that indicates that DCJ are completing an assessment and that we have advised the mother that the children are not to have contact with him during the assessment.
I confirm that this is not true…
The mother asked for a letter stating that the children could not have contact and that she did not agree with the father have any contact in the first place.
I confirm that I told the mother that we could not provide the letter and that she should seek legal advice…
At no time was the mother told that we would be completing the investigation. I also told her that we would not tell her that the children could or could not have contact with the father and she needed to seek legal advice regarding this.
I have spoken to the father and his partner today… I confirm that I told them that the DCJ are not completing an investigation and that DCJ also did not advise that the children should not have contact.
[71]Also annexed to the mother’s affidavit is a referral to [Dr L] from the [City G Medical Centre] indicating that [Y] has “signs and symptoms of [a medical condition]. However the mother is worried about possible abuse by the father.” While there is no explanation as to what [this medical condition] is in the doctor’s referral, there is no indication of any concern of sexual or other abuse of the child, by the medical practitioner who appears to have examined the child. It is inferred that it is likely that the medical practitioner explained the nature of the inflammation to the mother and that such mild inflammation was a common occurrence in young children. The paediatrician that the child was referred to was not able to examine the child due to the child’s distress. The paediatrician indicated to the mother “I don’t see any redness or bleeding. I think she is fine now”.
Allegation of sexual abuse of Y
On 29 November 2020, the children spent time with the father. It was the first time they had spent time with the father since early May 2020. The mother deposes that:
… On 30 November 2020 and 1 December 2020, [Y] put her finger into her vagina when she was having a shower. She was standing up and putting her finger into her vagina. I never observed this before. I had a concern and I contacted Child Protection Helpline and described my observation. The staff over the phone said to me “It is sexual abuse.” I cried when I heard it. And I said to her “I have to send the children for contact on Wednesday.” She said, “stop the contact until further notice, talk to your solicitor.” She provided me with a report number, […]. I reported it to the police whom advised me to take [Y] to see the Doctor. I took [X] and [Y] to see a Doctor. The Doctor examined [Y] and commented that “The father must have touched [Y] [sic] inappropriately during unsupervised contact.” [X] said “Papa also touched me here and it is painful sometimes.” The Doctor suggested me to seek supervised contact again through the solicitor….
The mother was cross-examined about her evidence in this regard, including her evidence given earlier in the proceedings in relation to the same incident (paragraph 16 of Affidavit of Ms Kannan filed 26 February 2021), which included additional details such as the child putting a toy into her “bottom” during the same incident.
The incident in the mother’s earlier affidavit was said to have occurred on the one occasion (either on 30 November or on 1 December) not multiple occasions as deposed to in the mother’s trial affidavit (occurring on 30 November and 1 December).
During cross-examination, when asked about Y’s age at the time of the alleged sexual assault, and Y “wanting” to have a shower, the mother in her oral evidence said that the incident occurred in November 2021 not 2020, that she was quite sure about this, even when it was put to her that nothing like this had happened as at February 2021 the mother confirmed that she called the police in 2021, but then confirmed that the date in her affidavit was correct and that the incident happened in November 2020 and that she was mistaken in her oral evidence.
The mother was asked in cross-examination about why she called the child protection helpline and the timing of her call to the child protection helpline. The mother indicated in her oral evidence that the helpline number was already saved in her phone and that she left Y in the shower while she went to make the call as the child was refusing to get out of the shower.
The crux of the mother’s evidence was that she could not remove the then 2 ½ year old Y from the shower because of the child’s refusal to do so. This in itself is implausible.
It is further implausible that the mother would firstly call the helpline rather than taking the toddler out of the shower and/or telling/making the child to stop her behaviour (which included a potentially harmful behaviour of inserting an object into her rectum). If she did do as she deposes, then this is a matter that goes to her capacity to meet the child’s needs and her capacity to adequately and appropriately parent. These matters are addressed elsewhere in these Reasons for Judgement.
Assertion as to advice received from DCJ regarding alleged sexual assault on child
Annexed to the father’s affidavit is an email dated 4 December 2020, which the mother’s solicitor sent to the father. That email read:
The Department of Communities and Justice (DCJ) are carrying out an investigation. They have advised [Ms Kannan] not to allow the children to spend time with you until they have finished their investigation.
I will advise you as soon as DCJ finishes their investigation.
In the meantime you can video call the children each night between 7 and 7.30pm
The mother does not address in her evidence the conflict between the assertions contained in her solicitor’s email and her sworn evidence from February 2021 (referred to in the Court’s earlier reasons for judgement), where the mother deposed to knowing that the DCJ were not investigating.
Assertion as to medical advice received regarding alleged sexual assault on child
The mother deposes in her affidavit that at the time of Y’s alleged behaviour in the shower in November 2020, after she called the child protection helpline, she reported the matter to the police and took the children to see a doctor. The mother deposes in her affidavit that:
The Doctor examined [Y] and commented that “The father must have touched [Y] (sic) inappropriately during unsupervised contact”. [X] said “Papa also touched me here and it is painful sometimes.” The Doctor suggested me to seek supervised contact again through the solicitor.
The mother annexes to her affidavit “Doctor’s letter”, except that the annexures contain three separate letters from the City G Medical Centre, on two dates in late 2020, and not just one.
The first letter dated late 2020 reads:
Dear Sir/Madam
I had examined [Y] today when she presented for a consultation with her mother.
I have serious concerns about her well being when she is with her father. Her mother tells me that her father had sexually abused her brother.
I strongly recommend that she stays with her mother.
Yours faithfully,
[Dr P]
The 1st letter from the second date in 2020, regarding X, reads:
Dear Sir/Madam
I have serious concerns for the safety of [X] if he is allowed to visit his father without supervision.
His mother gave me a history of sexual/physical abuse by his father.
Yours faithfully,
[Dr P]
The 2nd letter from the second date in 2020, regarding Y, reads:
Dear Sir/Madam
I have serious concerns for the safety of [Y] if she is allowed to visit her father without supervision.
As per his [sic] mother, her brother was sexually and physically abused by his father.
I would be grateful if could [sic] ensure that the visits are supervised for the safety of [Y].
Yours faithfully,
[Dr P]
In all three letters, Dr P asserts that it was the mother who gave the doctor the history of sexual and physical abuse of X by the father (and not X himself). There is no evidence of what the mother actually said to the doctor, whether by way of medical notes or in the mother’s evidence in chief. Therefore the conclusion that the doctor is said to have reached is difficult to understand, given that there is no evidence of the basis of his opinion, except the mother’s word that the father had sexually and physically abused X. While there is evidence that the doctor “examined” Y, the extent of the examination is not the subject of any evidence.
The mother does not address in her evidence the conflict between the letters annexed to her trial affidavit and the referral from Dr L annexed to her sworn evidence from February 2021 (referred to in the Court’s earlier reasons for judgement).
Explanation as to why did not comply with orders
No explanation is given in the mother’s trial affidavit as to why she routinely did not facilitate time between November 2020 and March 2021 in accordance with court orders.
Reason given by the mother for withdrawal of ADVO application
In mid-2021, the mother personally applied for an Apprehended Domestic Violence Order (“ADVO”) for the purposes of protection from “[Mr Kannan’s] and [Ms M’s] misbehaviour at that time”. The mother deposes in her trial affidavit that on 1 September 2021, she decided “to withdraw the ADVO legal proceedings as I did not have Legal Aid assisting me.”[11] Annexed to her affidavit is the email dated late 2021 to the Local Court requesting that her application be withdrawn.[12]
[11] Mother’s Affidavit filed 30 January 2023 at [167].
[12] Strictly speaking, the email reads “I therefore intend not to press that requisition” however, it is clear from the email as a whole that the mother was notifying the Local Court that she was not pressing her application for the ADVO as she was not able to get legal aid and have legal representation.
The mother then deposes (only 2 paragraphs later) that as a result of her noticing “during a video call [[in late] 2021]… that [Mr Kannan] has shaved [Y’s] head without telling me and verbally abused her, [Y] cried during the video call. I got frightened that if I continued ADVO proceedings, [Mr Kannan] and [Ms M] might cause harm to [Y].” The mother then deposes that she rang the Court to withdraw her application.
By that stage, that is, by late 2021, the mother had already decided to withdraw her application for the ADVO, for a different reason.
Allegations of financial abuse
The mother’s evidence in chief at final hearing makes a number of assertions as to what may be termed financial abuse. She says for example that the reason she did not call the police when the father abused her was because he apologised and also because she was “scared to report because I am afraid… he would stop supporting our living expenses. I am afraid the children and I would be homeless without his financial support.”[13]
[13] Mother’s affidavit at [152]
However, at the time the mother was working and had apparently been told that it was her job to pay bills, and that the father (and his mother) were refusing to pay the utility bills. It is difficult to understand how the mother would be concerned that the father would stop financially supporting her when her evidence is that he was not financially supporting her.
Furthermore, the mother’s evidence is that in about late 2018, she went to the real estate agent and asked to have the lease in her name only, which was then done, that is, the mother became the sole tenant, even though the father remained living with her. The mother says that she applied for the lease to be in her name only as she had received some advice from a social worker at F Hospital about this.
The mother then says that in mid-2019, the father and her were looking to rent a larger property as this is what the father wanted, and that when she inspected a property and spoke to the father about it over a video call, he indicated that he liked it and that it looked good. The mother says that her and the father were arguing about finances and that she was stressed about the financial situation. She says “[Mr Kannan] wanted a larger property for the family to live in. I could not afford to do this without [Mr Kannan] contributing to the expenses”.
Such evidence is a far cry from the mother not being able to house herself and the children and being financially dependent on the father such that she was too frightened to report the abuse she says she was subjected to the police.
Matters noted in interim judgement not addressed
In the judgement delivered in June 2021, the Court in detail considered the mother’s evidence relied upon to date, and made a number of remarks in respect of apparent inconsistencies in the mother’s case and raised some issues about the mother’s case. Those apparent inconsistencies and issues raised have not in any way been addressed by the mother at final hearing.
Allegations made by the mother
The mother has made numerous allegations of physical, emotional and sexual abuse against the father. These allegations have all been denied by the father.
The father was not cross-examined in respect of any of the matters which the mother alleges, that is, the father was not cross-examined in respect of the allegations of choking the mother, physically abusing the mother, verbally abusing the mother, financially abusing the mother, physically abusing X, sexually abusing X and sexually abusing Y.
The difficulty for the Court is that notwithstanding that no findings have been sought to be made, some of the allegations which the mother makes are simply horrific and cannot be ignored.
An example of the mother’s evidence in this regard is as follows:
Around [mid] 2019, [Mr Kannan] became more violent towards me when we found out I do not have enough points to make a permanent residency application. He choked me and threatened me that “if you are not going to get me PR there is going to be blood, I will throw you off the balcony, you fucking bitch.
Only to be followed by:
Around this time, he threatened me to write on a piece of paper that he intended to divorce me.[14]
[14] See Mother’s Trial Affidavit at [140]-[141]
While the Court can simply take the view that the alleged “threat” to write on a piece of paper that he intended to divorce her, might in reality be evidence of a threat to divorce and as such potentially evidence of psychological abuse, in light of the fact that it was the mother who was the sponsor of the father’s visa, that it was the mother who was the person with the lease in her name and the financial means to support the family, it is difficult how such evidence could ever be evidence of abuse or coercion and control.
As noted earlier, the mother did not make a submission that the Court can and should make findings of fact with respect to the allegations she has made. On the evidence before the Court and on balance, the evidence does not support any such findings in any event.
What the evidence does support, is a finding that the mother has at times not been honest and that she has embellished at least some of the allegations she has made in order to serve her case.
One such example is the suggestion that the father was either sexually or physically abusing X (or both) by rubbing mustard oil on X’s penis. The mother said that she was “scared” after the father told her that his mother and he were using mustard oil and a sharp needle on X.
The father gave evidence during the hearing that the mustard oil was a home remedy in respect of an inflamed/infected foreskin that the child was suffering from at the time. The father agrees with the mother that the parents took the child to the doctor, and that the doctor told the father not to use such home remedy but instead prescribed a medicated cream for the child.
The parents were at the doctor together. The mother was clearly aware at the time that the father was applying a home remedy and in fact, she is the one who insisted that he not do so any more and insisted that the child be taken to a doctor. To now be suggesting as she does in her evidence that she was “scared” and that she genuinely believed that this was some sort of sexual and/or physical abuse of the child by the father is just plain dishonest.
Findings as to credit
The Court formed the view, after observing the mother being cross-examined, that she gave evidence in a way that was self-serving, that she embellished some of the evidence and tailored it to suit her case.
Where the two are in conflict, the Court prefers the evidence of the father to that of the mother.
Family Report
Before the Court is the uncontested Family Report released 29 June 2022 and Addendum Family Report released 7 July 2022.
In the Family Report, the Family Consultant observed the mother to be, at times, anxious about the children’s safety and wellbeing in the fathers care and sad that she did not spend time with them.
The Family Consultant states that the father was continually critical of the mother’s parenting capacity. Both parents were observed to play well with the children and be attentive to their needs and wants although the mother had a tendency to be over attentive, especially to Y. The children were observed to be comfortable and content with spending time with both parents. The Family Consultant observed that the children appeared more interactive and engaged with the father and his partner than the mother.
The Family Consultant opined that the mother’s over attentiveness and anxiety may create challenges for the children to develop skills, independence and may, over time, adversely impact upon achieving development milestones. Further, the Family Consultant stated that it may be detrimental to the children’s psychological and physical wellbeing and could jeopardise their ongoing relationship with the father.
The Family Consultant also had concerns about the father’s comment to X to “be a man” however, generally, the father was observed to provide comfort to the children in a timely and appropriate manner which suggested that he was attuned to the children’s needs. The father’s partner was also observed to be attentive and affectionate to the children and the children responded well to her involvement and called her “mummy” during the observation.
The mother made various allegations of violence and abuse against the father to the Family Consultant. The parents were both highly critical of each other generally, and in relation to their parenting styles and capacities. The Family Consultant concluded that the parents have a highly conflictual and dysfunctional co-parenting relationship since separation.
Ultimately, the Family Report recommended that:
(a)if the Court determines that the children are not at an unacceptable risk of harm in the father’s care, that they live with the father and spend time with the mother each alternate weekend and from Wednesday afternoon until Thursday morning in the intervening week, in addition to special days; and
(b)if the Court determines that there is an ongoing risk of high parental conflict, that the father have sole parental responsibility.
In the Addendum, the Family Consultant considered the Court’s reasons for judgments dated 18 June 2021 and its impact on the recommendations. The Family Consultant noted that material from the contact service supervisor further supported the father’s capacity to meet the need of the children. The Family Consultant also expressed concern about the increasing volume of allegations made by the mother against the father and also expressed concern about the mother’s mental health and her parenting capacity in general.
The recommendation of the Family Consultant in the addendum are are that:
[9]If the Court determined that there is ongoing risk of high parental conflict, it is recommended that [Mr Kannan] have sole parental responsibility for the children. In other circumstances, it is recommended that the parents attend Keeping Contact program to assist them in the process of sharing parental responsibility.
[10]Unless the evidence before the Court suggests otherwise, it is recommended that an order be made for the children to live with [Mr Kannan].
[11]If the Court is satisfied that [Mr Kannan] has demonstrated capacity to comply with Orders, it is recommended that the children spend time with [Ms Kannan] each alternate weekend from Friday 5pm until Sunday 5pm; and from Wednesday afternoon until Thursday morning in the intervening week, in addition to special days.
[12]If the Court remains concerned that [Ms Kannan] has limited capacity to support the children’s ongoing relationship with [Mr Kannan] and their paternal family, it is recommended that the children spend no time with [Ms Kannan].
Primary and Secondary Considerations
The Court is mindful that notwithstanding that no findings have been made in respect of the allegations of abuse levelled against the father, the Court is still obliged to assess risks.
X did say to the Family Consultant that his father threw his step-mother’s phone and broke it. Consequently, the Family Consultant opined that if X’s account has substance, then it suggests an ongoing pattern of abuse and raises concerns for that the children will be exposed to violence. Apart from the comment to the Family Consultant by X, there is no other evidence which suggests that the children have witnessed any family violence while living with the father and his wife, and such matters were not put to the father in cross-examination.
On the evidence, the Court does not find that the children are at risk of any sexual or physical abuse from the father. In coming to this conclusion, the Court has taken into consideration the allegations made by the mother as well as the matters noted by the Family Consultant.
The children live with the father and his new wife, their two step-siblings and their baby half-sibling. Also living in the children’s home for months at a time, is the paternal grandmother, who visits the father and the children from Country N on a regular basis and has done so throughout the children’s lives.
The children have established and meaningful relationships with both of their parents, their step-mother and their paternal grandmother.
The children are both young, particularly Y for her views to be given any weight. X has indicated to the Family Consultant that it is his preference to live with the father. However, the Family Consultant also noted that[15]:
At times… [X] presented with strong and negative views about [Ms Kannan], and the manner in which she interacts with or cares for him. Whilst [X] said that his comments were based on his own observations and experiences of [Ms Kannan], he also mentioned that [Mr Kannan] and [Ms M] have made certain comments to him regarding [Ms Kannan], which may have influence his views… [X] is aware of the conflict and adult issues in dispute between [Ms Kannan] and [Mr Kannan].
[15] Family Report dated 29 June 2022.
Following the interim orders made in June 2021, the parents have for the most part done their utmost to ensure that the children are spending time with the mother in accordance with the orders. The parents have been able to co-operate and agree on some variations to the time in order to accommodate the mother’s work commitments. However, that flexibility seems to have reached its limit, and the parents have then returned to the time provided for in the orders.
The mother is in paid employment at present while the father is not, although he is financially supported by his wife, savings and rental income coming in from Country N. The mother pays child support and the father otherwise financially supports the children. The mother has also paid for X’s school fees, which arose as a result of the child not being an Australian resident or citizen.
The mother has in the past been able to organise paid care for the children when she has not been available to personally care for them due to her work commitments. Y attends day-care a few days a week and X is at school. The evidence supports a finding that while the mother has in the past sought to change the arrangements for spending time with the children due to her work commitments, there is nothing to indicate that she would not be able to make appropriate arrangements to ensure that the children are with her at all times provided for by orders.
The likely effect of any changes on the children’s circumstances if orders in accordance with the mother’s application were to be made would be significant. The children are presently living with the father and spending significant and substantial time with the mother. The parents both live in the same suburb within close proximity of each other, and of X’s school. If orders were made in accordance with the father’s application, there would be no change except that the children would be spending slightly less time with the mother than they presently do pursuant to the interim orders. If orders were made in accordance with the ICL’s application, then there would be only a slight change to what is presently occurring.
The capacity of each of the parents to provide for the children’s needs is one of the most significant considerations in the circumstances of these two children, this is so particularly in light of the opinion of the Family Consultant as noted[16]:
[8]If [Ms Kannan’s] allegations against [Mr Kannan] are exaggerated or falsified, then it demonstrates a lack of capacity for [Ms Kannan] to place the current and ongoing needs of the children above her own. In the absence of any change to [Ms Kannan’s] behaviours, continuing an arrangement whereby the children spend regular time with [Ms Kannan] may increase their exposure to parental conflict, further safety investigations and increases the likelihood that their time and relationship with [Mr Kannan] and the paternal family will be severed. If the above-mentioned risk issues in relation to [Ms Kannan’s] parenting capacity remain, then such risk issues and impact upon the children likely outweigh any benefit for the children of maintaining a relationship with [Ms Kannan], and it may be in the children’s best interest if they spend no time with [Ms Kannan]. In this event it is likely that the children will experience some grief and loss associated with this change, given they have an established relationship with [Ms Kannan], however, they may experience greater stability in [Mr Kannan’s] case and be protected from detrimental outcomes that are associated with entrenched and long term parental conflict.
[16] Addendum to Family Report dated 7 July 2022.
The Court has already determined that the allegations which the mother makes have been exaggerated and that her evidence has been embellished to serve her case. In those circumstances, the Court finds that there is a risk to the children that if the mother’s behaviour continues then they are likely to be exposed to further conflict, interruptions to their time with the father and potentially a severance in the relationship with the father and the paternal family.
However, since the June 2021 orders there have been no further allegations made by the mother and indeed, she has given evidence that she does not consider the children to be at risk whilst in the father’s care. The mother has said that the children have not reported anything concerning to her and that she is satisfied that the father has changed his behaviour.
The risks associated with the mother’s allegations, would, if they were found to exist, be unacceptable. However, the Court has already addressed its findings in respect of risk and has found that there is no risk to the children of physical or sexual abuse in the father’s care.
Importantly, the Court does not find that the mother was malicious in making any of the allegations which she has to date made.
The mother’s allegations have to be understood in the context of her tightly held belief that the father has been physically violent towards her, including choking her. Her allegations have to be understood in the context of her stated need to be with her children and doing whatever was possible to ensure that this happened, even if it was misguided.
Neither of the parents appears to truly appreciate the impact that their behaviours to date might have had on the children. This is a reflection of each of the parents’ attitudes to their children and to the responsibilities of parenthood. There have certainly been times post the parties’ separation when each of the parents has put their own interests ahead of those of the children.
Furthermore, neither of the parents appears to truly be able to appreciate what their children’s needs are, including their emotional and psychological needs.
The Family Consultant opined that the father’s comment to X to “be a man” may be indicative of the father not having age appropriate expectations of the children. This may in turn mean that he would not be able to meet the children’s needs nor have the parenting capacity to appropriately deal with what is surely to come in the future when the children display normative behaviours.
In respect of the mother, the Family Consultant noted that if the mother’s attentive and directive behaviours are indicative of her general interactions with the children, that this may then create challenges for the children and may over time adversely impact upon the children achieving their developmental milestones.
What is of most concern to the Court however, is that the parents were both very critical of each other during the family report interviews, and that the children do not appear to be shielded from such views (or at least X is not). This does not bode well for the children, and their parents would be well advised, for the benefit of the children to curb such expression of views.
However, the Family Consultant has noted during observations of the parties and the children, that the children sought comfort from their father and that they interacted in a loving and comfortable way with their mother. Therefore, each of the parents has been able to demonstrate that they can meet the children’s needs and that the children trust them to do so.
The parents are both from Country N, and it is understood that each of them would promote the relevant traditions and culture with the children.
The Court has already addressed the allegations of violence earlier in these Reasons for Judgment.
These proceedings have been on foot since May 2020, a period a little shy of 3 years. These children need stability and an end to the parental conflict. It is all that Y has known, and likely to be all that X can remember. Once final orders are made, and noting that there has been relative stability since the interim orders, it is likely that orders as made herein are least likely to lead to the institution of further proceedings.
Parental Responsibility
The parents have had a highly dysfunctional and conflictual relationship.
While there has been some recent co-operation between them in respect of accommodations for requests to change time the children spend with the mother, the relationship between the parents is such that a requirement for joint decisions would cause further conflict between the parents.
The evidence on balance, supports a finding that it would not be in the children’s best interests for the parents to have equal shared parental responsibility. The recommendation of the Family Consultant is that the father should have sole parental responsibility for the children.
In all of the circumstances, it is in the children’s best interest that there be an order for the father to have sole parental responsibility for the children.
The Court accepts the father’s evidence that he will notify and communicate with the mother prior to making any decisions about major long-term issues in relation to the children, and that he will take her views into consideration. The Court accepts that if the father forms the view that the mother’s suggestion in respect of that particular long-term issue is the better option for the children, he will then take up that suggestion.
International Travel
The father seeks an order for each of the parents to be able to travel with the children internationally. The mother seeks that passports are obtained and held by the mother and that both parties are restrained from removing the children from Australia.
There is no evidence that either parent is a flight risk.
The father is now a permanent resident, but the children are not and neither is the mother. The Court understands that the mother has applied for a visa for her and the children to remain permanently in the jurisdiction. Presumably once these proceedings are finalised, the father will also be able to make an appropriate application in respect of the children’s visa and residency status.
The children should have the benefit of international travel with their parents, provided that their safety is ensured. Both of the parents hail from overseas, and international travel will likely be an enriching experience for the children allowing them to learn about different cultures in other countries, including their parents’ cultures.
CONCLUSION
In all of the circumstances, the Court finds that it is in the children’s best interest that an order is made for them to live with the father and to spend significant and substantial time with the mother.
The orders which the ICL proposed at the conclusion of the hearing in respect of time are the most likely to promote a meaningful relationship between the children and the mother, while also providing stability and consistency for the children. The mother has in the past been able to make appropriate arrangements for babysitting and no doubt will be able to do so in the future in respect of any conflicts arising her commitments to the children’s care and her work arrangements.
It is in the children’s best interest to spend block time during school holidays with each of their parents. It will be to the benefit of the children to spend block time with each of their parents while away from the pressures of school. It will allow them to spend time with both their mother and their father in a more relaxed manner, while also requiring each of the parents to ensure that they make appropriate arrangements[17] for the children for block periods of time.
[17] Including of course as appropriate vacation care or similar child minding if the parents are in paid employment and unable to take leave
Until Y commences school, the children will spend half the short school holidays with each of the parents, and spend time week about during the school holidays at the conclusion of term 4. This will give the children the benefit of time with both of their parents while not being away from the other parent for too long a period of time. Once Y commences school, the children will spend half the school holidays with each of their parents, including the school holidays at the end of term 4.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 3 March 2023
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