Kasun-Stojanovic and Kasun

[2007] FamCA 877

FAMILY COURT OF AUSTRALIA

KASUN-STOJANOVIC & KASUN [2007] FamCA 877

FAMILY LAW - CHILDREN – Defended hearing involving parents of the Muslim faith, the mother a fundamentalist.  Dispute as to how their 6 year old be brought up in Australia.  Settled, at least until the child is 10 years old.

Family Law Act (1975)

APPLICANT: Ms Kasun-Stojanovic

RESPONDENT: Mr Kasun

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1278 of 2005

DATE DELIVERED: 15 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper

SOLICITOR FOR THE APPLICANT: Randles, Cooper & Co Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Denton

SOLICITOR FOR THE RESPONDENT: John Denton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Elleray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ryan Carlisle Thomas

Orders

1. That the Interim Order made on 15 June 2005 be discharged.

2. That the Applicant Wife and Respondent Father have equal shared parental responsibility for the major long term decisions relating to the care, welfare and development of the child of the marriage H born … July 2001.

3. That the Applicant Wife and the Respondent Husband each have the sole responsibility for the making of decisions relating to the day to day care, welfare and development of the child when she is in his or her respective care.

4. That the child shall reside with the Applicant Wife.

5. That the Respondent Husband spend time with the child as follows:-

   (a)commencing on Friday 17 August 2007, on each week-end save for the last week-end of each month and thereafter on each Friday from the conclusion of school or from 6.00 pm during non school periods until 6.00 pm on each such Sunday evening;

   (b)on the Wednesday immediately following the last week-end of each month from 6.30 pm to 7.30 pm;

   (c)for one half of each of the school holidays to be agreed between the parties, and in default of agreement for the first half of each school holiday period. The husband shall notify the mother in writing one month in advance if he is unable to avail himself of the school holiday provisions;

   (d)at such other times including the child’s birthday, the father’s birthday, Christmas day and Easter and on Fathers Day as may be agreed between the parties or in accordance with the child’s wishes.

6. That the question of the child’s schooling be reviewed by the parties at the completion of the school year upon the child attaining 10 years of age and that any decision to change the child’s school include an assessment of the child’s expressed wishes on the subject.

7. That both parties shall have reasonable telephone contact with the child.

8. That the appointment of the Independent Children’s Lawyer,  made by Order of this Honourable Court made on 15 June 2005 be discharged.

9. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES:

A.That the issue of the Father travelling overseas with the child for the purposes of holidays (raised by the Family Consultant in the last paragraph of her report dated 29/9/05) has been raised by the Father this day and may need to become the subject of a formal application by him at a later date.

B.That the Mother shall teach the child how to bathe herself and learn the necessary gynaecological hygiene skills for ensuring the child’s personal comfort.

C.That in the event the child wishes to communicate with the Mother during the Father’s block holiday periods the Father shall facilitate same.

D.Week-end time “spent with” periods are suspended during block holidays.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest  delivered this day will for all publication and reporting purposes be referred to as Kasun-Stojanovic and Kasun

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1278  of 2005

Ms Kasun –Stojanovic  

Applicant

And

Mr Kasun

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of Defended Cases and concerns the welfare of a little girl, H, born on in July 2001.

2. The issues relating to this child have been adequately reported upon in the two excellent reports of Ms M, which are on the court file.  She has described in comprehensive and detailed form the issues for my consideration.

3. By way of short background, the parents entered into a relationship in December 1992 and married in London on in December 1994.  The child was born, as I said in July 2001.  Following unhappy differences, the parties separated under the one roof in about March of 2004 and physically separated in July 2004.  The child remained in the mother’s care following separation.  Following the birth of the child, and it is common ground, the mother suffered post natal depression.  However, she received appropriate medication and achieved stabilisation. 

4. In her first report dated 29 September 2005, Ms M summarised the dispute between the parties as follows:

   “45.This is a rather sad situation that the strikingly differing religious views and way of life have come in the way of two loving individuals and has caused the marital breakdown.  Both parents present as strong minded individuals and stand firmly by their beliefs.

   46.Both parents were brought up in Islamic families, but were non practising Muslims for most of their relationship.  However, after the birth of [the child] the mother has sought the Islamic faith strongly and now follows the strict Sharia rule which obligates her to follow Islamic laws quite strictly.  This includes wearing of traditional clothing with a Hijab which has become a major issue between the couple.

   47.The father finds it extremely hard to accept the mother’s decision to change and embrace the Islamic faith totally.  He considers it completely unsuitable, impractical and segregating in the context of their life in the western world.  He is concerned that [the child] would be forced by way of mental manipulation or coercion to wear the same before she is of an age where she can make an informed choice.  He is worried that this is more likely if [the child] attends an Islamic school in the future.

   48.[The father] strongly believes that [the child] needs to receive normal Australian education.  He is aware that if [the child] resides with her mother she would be introduced to her mother’s religious ways, but he wants to make sure that [the child] also receives formal education without the influence of any religion.  The father is confident that he could come to an agreement with the mother to find a Public or a non-denominational private School for [the child] closer to her home.  He is happy to share the expenses involved in such education.  The mother prefers that the child attends an Islamic school however is not totally against the idea of the child attending a good Government school.  The father has stated that he is collecting information about the schools around the mother’s home.”

5. In the course of that report, Ms M made it clear that [the child] was primarily attached to her mother but had a close emotional connection with her father and was thriving both in the care of the mother and the father.  She said that both the parents presented as “caring and responsible” individuals.

6. Since the writing of the first report, the mother married a Mr G, who is 36 years of age.  Mr G was brought up in Bosnia and migrated to Australia in the mid 1990’s.  A child, L was born of their union in January 2007.  The mother provides primary care for both H and L. 

7. The second report of Ms M and dated 18 May 2007 prescribed the issues between the parties.  It is clear from her report that the child enjoys an extremely close and loving relationship with each of her parents.  In the period between her two reports, the mother made a unilateral decision to enrol the child at … School which caused great concern to the father.  Ms M reported that the school is a denominational independent co-educational school approved by the Victorian Government.  The school follows the expected standards and prescribed curriculum as other public schools in Victoria, save for a 45 minute Islamic education session on a daily basis when the children recite the holy Quran.  The school has approximately 950 students all from Muslim families.  The child is expected to wear a Hijab once she attains the age of 10 years which is part of the school uniform and is compulsory.  This is strongly opposed by the father.

8. In the course of her evaluation and recommendations, Ms M succinctly sets out the dispute between the parties.  Having described the position of both parents, she explained:

   “40.The writer believes that the parents are fighting for ‘control’ over their daughter and have completely polarised views about what is in the best interests of their child.  They both stuck (sic) in their personal insecurities, seemed to lose sight of the big picture that the parents in a major way influence their children to be who they turn out to be as adults more than the schools the children attend.  It is certainly harmful for [the child] to observe the mistrust and hostility displayed by each parent against the other’s most cherished values.

   41.Furthermore, there is need to take care that the dispute about the child’s welfare here is (not) distracted by the debate over sensitive religious issues which can be argued extensively in a positive or negative manner …”.

9. Ms M reported that the child appeared to be coping with her situation “in an admirable manner”.  She said that it was difficult to predict the impact of the disputed issues upon the child when she attains 10 years of age and it was more likely, if there was no resolution to the dispute between her parents, that the child would experience a “great level of confusion and internal conflicts as she grows older”.  Ms M said that the child was too young to be expressing strong views about which values held by each parent made her intrinsically happy and fulfilled as a person. 

10. Furthermore, Ms M reported that if the child were allowed to continue in her current school, the contested issues might surface in her sixth grade when she will be obliged to wear a Hijab.  Ms M then went on to set out very helpful recommendations for both parents and which have been accepted by them.  Wisely, Ms M said that if the child were to continue in her current school, the disputed issues may need review before she turns 10 years when wearing a Hijab became part of the uniform at her current school.  At that time the child would be able to express her views on the subject. 

11. The parties have, sensibly in my view, conferred and negotiated with the assistance of their professional advisers.  They have, in the result, adjusted the dispute, at least until the child attains the age of 10 years.  The importance of that age is referred to in the affidavits of the parties and the reports of Ms M and I do not propose to detail the same in these short extempore remarks.

12. One of the outstanding and prominent features that emerge from my reading of the documents is the fact that the child is greatly loved by her mother, her father and extended family on the mother's side.  The father's family still live in Kosovo.  It is very clear to me that the child is fortunate in having parents utterly devoted to her care, welfare and her advancement.

13. The Family Law Act (1975) is secular legislation, and contains philosophical wisdom, if I may say that, insofar as section 60B of the Act is concerned which prescribes the objects and principles of the Act itself.  The principles underlying the objects of the Act are that the child has a right to know and be cared for by both her parents.  The child has a right to spend time on a regular basis with and communicate on a regular basis with both her parents and other people significant to her care, her welfare and her development.  Such persons, for instance, would include the wife’s new husband.

14. The principles include the important object that both the husband and the wife jointly share duties and responsibilities concerning the care, welfare and development of the child.  They should, insofar as it is possible, agree about her future parenting. 

15. I congratulate the parties on having the ability, the dignity and the mutual respect in coming to these arrangements and I wish them both good fortune in the future.  I also congratulate the legal representatives in having the professional skill to negotiate what I regard as a very important agreement between the parties.  I also thank Ms Elleray, for the Independent Children's Lawyer, for her role in assisting in brokering, if I may put it that way, those arrangements.

16. Finally, I may add that the parties are both Muslim in faith, yet differ in the depth of the respective beliefs, the wife being fundamentalist.  The husband expressed concern that the child embrace what he described as the “Australian way of life”.  The next four years will be important for the child who has the benefit of loving and devoted parents.  Each must consider and respect the views of the other, but in the result, any decision of this court will be predicated upon her best interests.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  24 August 2007.