Kashef & Kashef

[2021] FamCA 566

FAMILY COURT OF AUSTRALIA

Kashef & Kashef [2021] FamCA 566  

File number(s):	PAC 2715 of 2016
Judgment of:	HANNAM J
Date of judgment:	5 August 2021
Catchwords:	FAMILY LAW – PARENTING – Where issues substantially settled with the consent of the parties at final hearing – where mother to have sole parental responsibility for the children – where the children are to spend no time with the father – where discrete issue for judicial determination – Where mother seeks the issue of passports for the children without the consent of the father – Where the mother seeks an order permitting her to remove the children from Australia for the purpose of a holiday – Where such orders are supported by the ICL – Where the father opposes such orders – Where it is in the best interests of the children to make the orders sought by the mother.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 64B
Number of paragraphs:	45
Date of hearing:	1-5 February & 19 March 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Goodchild
Counsel for the Respondent:	Ms Druitt
Counsel for the Independent Children's Lawyer:	Ms Decle by way of Microsoft Teams
Solicitor for the Applicant:	Rafton Family Lawyers
Solicitor for the Respondent:	N J Papallo Lawyers
Solicitor for the Intervener	Intervener in person
Solicitor for the Independent Children's Lawyer:	Legal Aid Penrith

ORDERS

PAC 2715 of 2016

BETWEEN:

MS KASHEF

Applicant

AND:

MR KASHEF

Respondent

MR B KASHEF
Intervener

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1.In the event that X born … 2010 and Y born … 2011 (“the children”) require a passport to travel internationally then Order 1 of orders made 19 March 2021 vests in the applicant mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth), such that the applicant mother is authorised to obtain a passport or travel document for the children to facilitate the children travelling overseas without notifying or obtaining the consent of the father.

2.That the applicant mother shall be the only person with parental responsibility for the purposes of applying for, and being issued with an Australian Passport for the children.

3.That pursuant to section 65Y of the Family Law Act 1975 (Cth) the applicant mother be permitted to remove the children from the Commonwealth of Australia at her discretion for the purposes of international holiday travel.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kashef & Kashef has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

1. This judgment concerns the remaining issue in dispute between the parties (“the mother” and “the father”) relating to the future parenting of their children, two sons aged 10 and 11 (“the children”) following the breakdown of their relationship.

2. Following the completion of five days’ hearing as to parenting, the parties were able to reach agreement in relation to virtually all matters that had been in dispute between them and final orders were made with their consent in accordance with that agreement. Under those orders, the mother has sole parental responsibility for the children who are to live with her and spend no time with the father.

3. The only remaining issues in dispute are whether the mother should be free to obtain passports for the children and take them with her or allow them to travel internationally without requiring the consent of the father to do so. On the final day of the hearing she proposed orders that would provide her with this liberty and these orders were supported by the Independent Children’s Lawyer (“ICL”). The father opposes such orders largely on the basis that they were sought late in the proceedings and did not form part of the suite of orders to which he agreed.

4. The question for me to determine is whether it is proper to make the additional orders proposed by the mother having regard to the best interests of the children as the paramount consideration.

   BACKGROUND

5. The mother who is 48 was born in a European country. The father who is 56 was born in the Middle East and travelled to the mother’s home country as a refugee where he began working for the mother’s father. The parties met at this time when the mother was aged 16 and the father 25.

6. The father first moved to Australia in the early 1990s and one year later returned to Europe to marry the mother, before the parties moved to Australia together the following year.

7. The parties’ first child, a son, was born in 1993. He is the older brother of the children of these proceedings (“the children’s older brother”).

8. It was the mother’s case at final hearing that the husband perpetuated emotional abuse towards her from the time the parties first arrived in Australia and this subsequently escalated to include physical and sexual violence. On a number of occasions in 1998, 1999 and 2000 police attended the family home following arguments between the parties and in 2000 the father was convicted of assaulting the mother for which he was sentenced to a 12 month good behaviour bond.

9. In 2010 and 2011 the children of these proceedings were born.

10. Limited information has been provided by the parties about the circumstances of their separation but it is apparent that in late 2015 their relationship was at an end and that they both continued to live with the children in the family home.

11. In June 2016 the mother filed an Initiating Application in the Federal Circuit Court seeking an order that the children’s names be placed on the Airport Watchlist and this order was made with the consent of the parties in August of that year. The mother did not seek any other orders at this time.

12. According to the mother’s evidence at final hearing, in July 2016 she observed an unusual interaction between the father and one of the children when the child was naked, causing her to question the child in relation to this interaction and the father generally. The mother’s case at trial was that the child made significant disclosures leading her to believe that the father was sexually abusing both of the children.

13. In the same month as first making these observations the mother made two complaints to NSW Police and several complaints to the Department then known as Family and Community Services (“the Department”), alleging that the father had sexually abused the children.

14. In October 2016 the mother left the family home with the children and obtained temporary accommodation in a domestic violence shelter. In the same month she also filed an Amended Initiating Application seeking orders that the children’s names remain on the Airport Watchlist, that she hold sole parental responsibility for the children and that they spend no time with the father as well as orders in relation to a property adjustment.

15. Throughout October the Department received ongoing reports in relation to the children reporting that they were the victims of indecent sexual acts, had been exposed to pornography and were displaying sexualised behaviour. At this time a provisional Apprehended Domestic Violence Order (“ADVO”) was made by NSW police prohibiting the father from having any contact with the mother and the children and the father was also restrained from attending the children’s day-care centre.

16. On 24 October 2016 proceedings were transferred to this Court. At the following court event an ICL was appointed and the matter was identified as being suitable for the Magellan Program[1].

    [1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

17. On 1 November 2016 the father filed a Response seeking that the parties hold equal shared parental responsibility for the children, that the children live with him and spend substantial and significant time with the mother. He also sought property orders and filed a Notice of Risk indicating that the children were at risk of physical harm and neglect in the mother’s care.

18. In early November 2016 the Department received several more reports in relation to the children, again including a report of sexual abuse, which was investigated by the Joint Investigative Response Team.[2]

    [2] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

19. In December 2016 an interim ADVO was made in a Local Court prohibiting the father from having any contact with the mother and the children.

20. In January 2017 the children began receiving counselling with a counsellor provided by a victim’s services agency.

21. The children were interviewed by JIRT on four occasions between August 2016 and February 2017 and in February 2017 JIRT substantiated the allegations of acts of indecency and exposure to pornography for both children and identified the father as a person causing harm.

22. In June 2017 orders were made with the consent of the parties providing that the mother hold sole parental responsibility for the children, that the children live with her and spend no time with the father. Orders were also made for the preparation of a Magellan Report.[3]

    [3] A Magellan report sets out the involvement of The Department with the family.

23. In May 2018 the application for an ADVO to protect the mother and the children from the father was dismissed in the Local Court.

24. At a court event in the same month, noting that the ADVO against the father had been dismissed and no criminal proceedings against the father had been instituted, orders were made with the consent of the parties restraining the father from contacting the mother, entering or frequenting the general vicinity of the mother’s workplace, home and the children’s school.

25. In July 2018 a single expert was appointed and in April 2019 the expert’s report was released to the parties.

26. In June 2019 trial directions were made to prepare both the parenting and property dispute for final hearing and the proceedings were listed for final hearing in September 2020. Due to restrictions associated with the COVID-19 pandemic in place at the time, these hearing dates were later vacated and the proceedings were relisted again for final trial in 2021.

27. The final hearing commenced on 1 February 2021 and at the outset orders were made with the consent of the parties finalising the property dispute.

28. The children’s older brother, now an adult, had been assessed by the expert and was also called as a witness by the father at the final hearing. During his cross examination on the last day of final hearing it became apparent that the older brother himself sought orders with a view to fostering the reestablishment of his relationship with the children. Subsequently, orders were made on the older brother’s application that he be joined as a party to the proceedings for the purpose of making submissions and seeking orders in relation to the children’s time with him.  At completion of the evidence directions were made for the parties to file written submissions in support of the orders they sought and a date was fixed for additional oral submissions, if required to supplement the written submissions.

29. In March 2021 at the court event for the purposes of the oral submissions the parties came to final agreement, including in relation to orders facilitating the children’s relationship with their older brother. The sole dispute remaining for judicial determination relating to the issue of passports and international travel was the subject of brief oral submissions from counsel for the father and the ICL and then judgment was reserved.

    The father’s submissions:

30. The central tenor of the father’s submissions is that the orders sought by the mother in relation to passports and travel were not proposed until final submissions in March 2021 and at no point previously had the mother sought such orders. The father submits that he does not know the basis for such orders and has not been offered procedural fairness in respect of them. He contends that he does not know where the mother may wish to travel with the children, when she might be contemplating going or how such travel may be contemplated. Counsel for the father provides the example that the mother may choose to take the children to visit her home country, where there may be some danger. He submits that no evidence has been presented on the issue.

31. The father contends that it is inappropriate for such orders to be made at the end of the hearing when they did not form part of the agreement reached by the parties. He proposes that the only appropriate orders in these circumstances are those which facilitate dispute resolution between the parties at time in the future when the mother intends to travel internationally.

32. Finally, the father contends that at the time of reaching agreement that the mother hold sole parental responsibility he was not providing consent to the possibility of the mother relocating overseas with the children. He contends that the children’s Australian citizenship is of great importance and if orders are made allowing the mother to travel freely the Court will be unable to place any protective measures on the children’s travel such as causing the mother to pay a bond to ensure that she and the children return.

    The ICL’s submissions

33. The ICL concedes that the mother’s application for an order allowing her to apply for passports for the children and to travel internationally came late in the proceedings which would usually be problematic. However, it is her submission that in the circumstances of this case it is highly unlikely that the father would have changed his position in regards to sole parental responsibility if the application had been raised earlier.

34. The ICL contends that it would not be in the best interest of the children for there to be further conflict between the parties or for the mother to be required to attend mediation with the father or to make an application to the Court in order seek the issue of passports and international travel.

35. The ICL addressed the father’s concerns in relation to international travel, highlighting that the orders proposed by the mother do provide sufficient conditions that limit travel, including the condition that such travel must be for the purpose of a holiday. The ICL also contends that weight should be attached to the fact that orders have been made which facilitate the children spending time with their older brother and requiring the mother to inform the children’s older brother of her address and contact details, which can also be seen as restrictions on the mother’s ability to relocate with the children.

    The mother’s submissions

36. The mother chose not to give oral submissions in relation to the order sought, rather, through an interchange with the bench it became clear that the mother’s position is that the issue of travel and passports are incidents of sole parental responsibility.

    THE LAW & DISCUSSION

37. An order facilitating a parent obtaining a passport for a child and allowing the child to travel internationally is a parenting order as defined by section 64B of the Act.

38. Section 60CA of the Act 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.

39. Having regard to the particular circumstances of this family, I am satisfied that it is in the children’s best interests to allow the mother to apply for passports for the children and for the mother to be at liberty to travel internationally with the children without the father’s consent for the following reasons.

40. Given the history of litigation between the parties and the seriousness of the allegations against the father I find that in no circumstance would it be appropriate for the parties to attend mediation if the mother wishes to travel with the children in the future, nor would it be appropriate for the mother to be required to make a further application to the Court. Given that proceedings have now been on foot for a period of five years, it would be in the best interests of the children that this matter is finalised in its entirety and that they are not exposed to further litigation.

41. I consider that the power to apply for passports for the children and travel internationally with them are incidents of sole parental responsibility, which was granted to the mother following final submissions in March 2021. However, due to the requirements of the Passport Office it is essential that the mother obtain orders specifically allowing her to exercise these normal incidents of sole parental responsibility to avoid her being required to make further application to the Court. In my view by providing consent to an order that the mother be granted sole parental responsibility the father must have accepted that the mother will exercise appropriate  judgment with respect to all matter of parenting, including the issue of international travel.

42. I accept the submission of the father that these orders proposed by the mother were sought late in the proceedings. However, in circumstances where the father has agreed to orders that effectively terminate his role in the children’s life it could not be seen that such application could be seen as procedurally unfair. This is especially so when the father has been given the opportunity to make submissions in relation to the issue despite the fact he has no further role to play in the parenting of the children in the future.

43. Although the mother will have the ability to travel with the children in accordance with her wishes if orders are made as she seeks I accept the submission of the ICL that the form of the orders does place some limitation on that ability. The father should take some comfort in the fact that travel is limited to travel for the purposes of a holiday. Further, there is no evidence that the mother has any intention of relocating outside of Australia with the children or that their Australian citizenship is at risk. On the contrary, at final hearing the mother explained that the children are currently comfortable at their school and she has no intention of changing their schools, and the orders to which she consented restrict her from doing so.

    CONCLUSION

44. Having regard to all of the foregoing matters and attaching particular weight to the fact that the mother holds sole parental responsibility for the children, I am satisfies that it is proper to make the orders as sought by the mother and supported by the ICL.

45. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       5 August 2021