KAPOOR & SHAH - [2013] FMCAfam 256

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAPOOR & SHAH

[2013] FMCAfam 256

FAMILY LAW – Interim parenting orders – allegations of family violence – live with – spend time – supervision of time – appointment of independent children's lawyer.

Family Law Act 1975, ss.4(1), 4AB(1), 4AB(2), 4AB(3), 4AB(4), 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61C, 61DA, 61DA(1), 61DA(3), 61DB, 65DAA(3)

“Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
Goode & Goode [2006] FamCA 1346
M & K[2007] FMCAfam 26
Murphy & Murphy [2007] FamCA 795
Newlands & Newlands [2007] FamCA 168
R & R: Children’s Wishes (2000) FLC 93-000

Applicant:

MS KAPOOR

Respondent:

MR SHAH

File Number:

CRC 323 of 2012

Judgment of:

Kemp FM

Hearing date:

28 February 2013

Date of Last Submission:

8 March 2013

Delivered at:

Sydney

Delivered on:

22 March 2013

REPRESENTATION

Solicitors for the Applicant:

Filewood Carty Lawyers

Solicitors for the Respondent:

Slater & Gordon

THE COURT ORDERS, PENDING FURTHER ORDER:

That [X] born [in] 2008 (aged 4 years and 6 months) (“[X]”) and [Y] born [in] 2009 (aged 3 years and 5 months)(“[Y]”) (“the children”) live with the mother.
That the children spend time with the father as follows:-
(a)For a period of 3 weeks, commencing on 25 March 2013 at the [C] Contact Centre for 2 sessions per week, being for not less than 2 hours each on such days to be agreed between the parties, but failing agreement on the days specified by the father, when the children are not, otherwise, in day care.
(b)Thereafter, for a further period of 6 weeks, for 2 sessions per week for a period of not less than 8 hours each session at such times and on such days to be agreed between the parties, but failing agreement from 9.15am to 5.15pm on days specified by the father, when the children are not, otherwise, in day care, with the father’s time to be supervised by the paternal grandparents and provided that no such time shall commence until the said paternal grandparents provide a written undertaking to the Court, in relation to their duties as supervisor, in a form acceptable to the Court.
That all changeovers be effected at the [C] Contact Centre as arranged by the parties with the said Centre.
That the children have telephone communication time with the father between 6.00pm and 7.00pm each day, while the children live with the mother (excluding the days when the children are spending 8 hours with the father), with the father or his nominee to initiate the call. The mother is to provide forthwith to the father a telephone number to enable that telephone time to occur.
That neither party denigrate the other or permit any other person to do so in the presence or hearing of the children.
That neither party discuss any matter the subject of these proceedings with the children or in their presence.
That both the father and the mother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KAPOOR & SHAH

Details

AGLC: KAPOOR & SHAH [2013] FMCAfam 256
Case: [2013] FMCAfam 256
Decision Date: 22 March 2013

CaseChat Overview and Summary

The case of Kapoor & Shah involves the parents of two minor children, [X] and [Y], who were married for six years before separating in November 2012. The mother, Ms Kapoor, left the family home and the children remained with the father, Mr Shah, for a brief period before Orders were made for them to live with their mother and spend time as agreed with their father. However, the children have since spent no time with their father. The primary dispute centres around the father's desire for unsupervised weekend visits with the children, while the mother insists on supervised visits in a secure venue and wishes to relocate with the children to Brisbane. The case was heard in the Family Court of Australia.

The court was required to decide whether the allegations of domestic violence made by Ms Kapoor against Mr Shah were substantiated, and if so, how this affected the parenting arrangements for the children. Additionally, the court had to determine the appropriate conditions for any contact between the father and the children, considering the allegations of domestic violence and the children's expressed reluctance to see their father. Another issue was whether the relocation of the children to Brisbane should be permitted and what impact this might have on their relationship with their father.

In its reasoning, the court examined the evidence presented by both parties and the Family Consultant's memorandum. The court found that Ms Kapoor's allegations of ongoing domestic violence were credible, particularly given the children's reluctance to see their father and their expressed fear of him. The court also considered the children's best interests in determining the conditions for any contact with their father. The court concluded that supervised contact in a secure venue, such as a contact centre, was necessary initially to support the relationship between the father and the children. The court also found that the mother's capacity to facilitate this relationship was questionable given her apparent influence on the children's views about their father. The relocation to Brisbane was not permitted due to the potential impact on the children's relationship with their father.

The court ordered that the children would spend supervised time with their father in a contact centre, with the possibility of progressing to unsupervised visits as deemed appropriate. The father was also permitted to have contact with the children via telephone and video calls. The relocation of the children to Brisbane was denied. The court emphasised the importance of maintaining the children's relationship with their father and the need for both parents to facilitate this relationship.

Orders

Orders of the court

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Background

Background to the litigation

The parties attended a Child Dispute Conference on 26 February 2013 with family consultant, Ms Q. Her memorandum noted the following:-Brief BackgroundThe parents were married for about six years and separated in November 2012. The mother left the family home. The children remained with the father for a brief period at which time Orders were made for them to live with their mother and spend time as agreed with their father. The children have subsequently spent no time with their father.There is a Domestic Violence Order in place with Ms Kapoor being the aggrieved and Mr Shah the respondent.Summary of agreement(s) reachedThere was no agreement reached.Issues remaining in disputeMr Shah seeks to spend any time with his children but preferably have them every weekend and if supervision is required that this be by the paternal grandparents.Ms Kapoor seeks to have the children spend time with their father supervised in a secure venue such as a contact centre.Ms Kapoor seeks to relocate with the children to Brisbane.Family safety factorsMs Kapoor alleges ongoing severe and controlling domestic violence throughout the course of her relationship with the father. She alleges he has threatened to kill her and the children at the time of separation. She also alleges he has physically harmed the children.Ms Kapoor reports concerns regarding Mr Shah’s alcohol consumption in that she says it contributed to his aggression and violence toward her. Mr Shah denies this is a problem and described a moderate level of alcohol consumption.Mr Shah denies all the allegations. He denied there were any problems in the relationship and is mystified at Ms Kapoor’s allegations and decision to end their relationship.Issues relating to the children[X] and [Y] were informally interviewed together. They were initially reluctant to come on their own with me but were encouraged by their mother’s offer of chocolate. Once alone with me they appeared to relax and they engaged in conversation. [Y] happily chatted and answered general questions but struggled to respond to questions about his paternal family. [X] responded to my general questions about her father by telling me in detail (as described to me by her mother) the events that led to the parental separation. She identified feeling afraid of him because of this and refused to spend time with him. Her body language matched what she was saying.I questioned the mother about [X]’s report to me as she had told me the children were not present during the arguments. Ms Kapoor agreed it was possible [X] had overheard her talking about this.[X] while refusing to see her father or grandfather was willing to see her grandmother. Both children were happy to see her and Ms D was effusive in her interactions with the children. [Y] was spontaneous and natural in his joyous response to this however [X] was somewhat reserved. Ms D asked excessively for the children to show her physical affection and this appeared to have the effect of making [X] feel uncomfortable as she asked to return to her mother. Ms D was reluctant to let the children go and I had to firmly instruct for this to happen. She continued to entice the children to stay with bribes of lollies.Issues impeding resolution If the mother’s allegations of domestic violence have foundation then at a minimum she would need to be protected from having contact with the father and would have difficulty sharing parenting responsibility.The children presented as having been exposed to the mother’s views about the father which has caused [X] to feel fearful. The mother’s capacity/willingness to facilitate the relationship between the children and their father.The children’s ability to have any relationship with their father should their mother move to Brisbane (especially given the allegations of violence against him).Future DirectionsThe children need to spend time with their father and paternal family to maintain these relationships as they are already showing signs of apprehension most likely caused by information provided to them by their mother.Initial contact with between [X] and her father would be best supported by a contact centre. It is my view this should only be with her father so the focus can be on this relationship. After several visits (more if contact is fortnightly) the visits could progress to full day visits each week with the father with changeovers to take place at the contact centre. The paternal grandparents’ presence is likely to assist the children in feeling comfortable but it will be important that the adults do not talk to the children about the other parent or challenge anything they say.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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