Keramati & Sehat

[2022] FedCFamC2F 1182

Federal Circuit and Family Court of Australia

(DIVISION 2)

Keramati & Sehat [2022] FedCFamC2F 1182

File number(s):	PAC 4548 of 2018
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	2 September 2022
Catchwords:	FAMILY LAW – Parenting – limited issues – final consent orders for mother to have sole parental responsibility for the child – final consent orders for child to live with mother – allegations of family violence – lack of insight – parenting capacity – child to spend no time with the father until the age of sixteen.
Legislation:	Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA
Cases cited:	Banks & Banks [2015] FamCAFC 36 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 Starr & Duggan [2009] FamCAFC 115
Division:	Division 2 Family Law
Number of paragraphs:	82
Date of last submission/s:	24 August 2022
Date of hearing:	22-24 August 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Hill
Solicitors for the Applicant:	Farah Lawyers, Solicitors & Barristers
Counsel for the Respondent:	Mr Sperling
Solicitor for the Respondent:	Legal Aid NSW Domestic Violence Unit

ORDERS

PAC 4548 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KERAMATI
Applicant

AND:

MS SEHAT

Respondent

order made by:	JUDGE OBRADOVIC
DATE OF ORDER:	2 September 2022

THE COURT ORDERS THAT:

1.The child, X born in 2011 shall spend no time with the applicant father, Mr Keramati, from the date of these orders until she turns 16 years of age.

2.Once X turns 16 years of age, she shall spend time with the father in accordance with her wishes. 

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 a pseudonym Keramati & Sehat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. These are parenting proceedings regarding the parties’ only child, X who was born in 2011. The applicant in the proceedings is the child’s father, Mr Keramati and the respondent is the child’s mother, Ms Sehat.

2. At the time of hearing X is almost 11 years old. The last time she spent time with the father was in September 2018, although there have been a number of attempts at the child spending time with the father since then which have by and large been unsuccessful. X has seen her father on a few occasions since September 2018, in circumstances which are detailed later in these reasons.

3. At the commencement of the hearing, the parties agreed upon a number of matters on a final basis, namely, that the mother shall have sole parental responsibility for the child and that the child shall live with the mother. The father also agreed to a number of injunctive orders, albeit without admission.

4. Final orders were made by consent in respect of the agreed matters, and the only issue remaining for the Court’s determination was what time, if any, the child should spend with the father. The father sought orders that X spend time with him 5 nights out of 14 each fortnight and half the school holidays, while the mother sought orders that X spend no time with the father.

5. The issue of time is complicated because of the high parental conflict, coupled with very serious allegations of violence.

   Relevant legal Principles

6. The central enquiry is for the Court to determine the outcome that will be best for the child who is the subject of these proceedings.

7. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). 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.

8. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

9. In determining what is in the 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.[1]

   [1] Slater & Light [2011] FamCAFC 1 at [45]

10. In applying the primary considerations the Court is to give greater weight to the need to protect child from harm than to the benefit to the child of having a meaningful relationship with both of their parents.

11. A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

    [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]

    [3] McCall at [122].

12. Consideration of the s.60CC factors does not take place in a vacuum and the relevant factors will need to be assessed in the context of the competing proposals.[4]

    [4] Starr & Duggan [2009] FamCAFC 115 at [35]-[36]

13. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[5] The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.[6]

    [5] s.60CG (1)(b); See Salah & Salah [2016] FamCAFC 100 at [36]

    [6] s.60CG(2)

14. 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.

15. 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 [13]

16. While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. In any event, discussion does not mean consideration.[8]

    Findings of fact

    [8] Banks & Banks [2015] FamCAFC 36

    Chronology

17. The father was born in 1979.

18. The mother was born in 1990.

19. The parties were married in 2011 in Country B, where they lived together until 2014.

20. X was born in 2011.

21. In 2014, the parties and X travelled to Country C, where they lived until 2016. In 2016, they migrated to Australia.

22. The parties separated on 3 September 2017 following an incident. On that day, a provisional apprehended domestic violence orders (“ADVO”) was made for the protection of the mother against the father.

23. On 5 December 2017, the father was convicted of common assault by the Local Court at Suburb D, and placed on a good behaviour bond for 2 years. A final ADVO for the protection of the mother was also made, to expire after 12 months.

24. Between September 2017 and September 2018, there were a handful of occasions when the child spent time with the father. The parties agree that the time was of limited duration and approximately 3 hours at a time.

25. In January 2018, the father was charged with contravening the ADVO.   

26. X has not spent any time with the father since 7 September 2018.

27. These proceedings were commenced by the father in September 2018.

28. The parties were divorced on 21 March 2019.

29. Following a child dispute conference in July 2019, interim orders were made by consent for the child to spend time with the father supervised by Ms E (“Ms E”), for 2 months each Saturday for 2 hours and then increasing to 4 hours for a further 2 months, and thereafter from 10am to 4pm each Saturday.

30. Although both parties attempted to comply with the orders for time, the child refused to go (with the supervisor) and consequently did not spend time with the father. Attempts to arrange for X to spend time with the father supervised with changeover to occur at F Contact Centre by agreement of the parties on 16 November and 14 December 2019 were also unsuccessful.

31. In 2020, the mother married her now husband, Mr G (“Mr G”).

32. On 4 August 2020, the Family Report was released.

33. On 26 November 2020, further interim orders were made by consent. Such orders provided for X to spend time with the father supervised at F Contact Centre. Once again, time was to increase on a graduating basis, starting with 2 hours each Saturday for 8 weeks.

34. Also once again, despite the parties’ attempts for such time to occur, X refused to spend time with the father on 12 December 2020 and 6 February 2021.  

35. Following an incident at Suburb H on 9 February 2021, the father was charged with stalk intimidate and intend fear physical harm and a provisional ADVO was issued against the father for the protection of mother and her husband. That matter remains before the Local Court and is awaiting a final hearing in October 2022.

36. Since the date of separation, the child has been living with the mother and continues to do so.

    Instances of Violence

37. Each of the parties makes allegations of violence.

38. The allegations the mother makes are very serious and span the many years the parties were together, as well as post separation. It is noted that the father denies the mother’s accounts and allegations of family violence either in their entirety and/or how they are described to have occurred by the mother.

39. The mother gives evidence that during the parties’ time in Country B, the father assaulted her on many occasions, including pulling her hair with enough force to cause it to fall out, punching her all over her body including on the head, face, chest, arms and back. The father denies that he has ever done so, and in answer says “How could I do this? ... She was my wife… I loved her.”

40. In or around 2013, the mother says that the father threatened her with an automatic machine gun and screamed “I’m going to kill you”. X was in the same room, trembling when this occurred. It was the mother’s brother and parents who intervened as they resided next door and could hear the yelling. The mother’s brother removed the gun from the father’s hand and later told the mother that the gun was “ready for shooting as the safety switch was off”. The incident occurred because the father became upset at the mother for saying hello to a male cousin in the street. The father denies that he ever threatened the mother with an automatic weapon or at all in the manner alleged. He says that he did not have a gun at the parties’ home, but that others he and the mother knew (such as the parties’ family members and friends) did have guns. The father denies that the mother’s family members intervened.

41. In or around 2014, the mother alleges that the father took a carving knife to X’s neck and threatened the mother that “If you leave or go to the lunch or dinner I will slaughter her”. The father denies behaving in this manner. The father says that there was an incident when the mother took a knife and attempted to self-harm. He says that he took the knife off her, and then took her out to a restaurant to calm her down.

42. The mother says that when the parties moved to Country C, the father’s use of physical violence worsened. He would use his hands to strangle the mother and use a belt to strike her. The father denies ever hitting the mother or striking her with a belt. He says he has never hit a man, let alone a woman.

43. The mother says that the father was also verbally abusive and would say things like “You are a bitch. You are a street girl. You are not a good girl. You are an animal. You are coming from the street”. The father denies ever calling the mother names.

44. After a couple months of arriving to Australia, the mother says that the father hit the mother after she attempted to defend herself by saying “We are in Australia…you have to change your behaviour towards me and not be violent to me”. The father slapped her face, pushed and kicked her stomach causing her to fall to the ground. The mother called the police, however did not make a formal statement upon their arrival. It is the mother’s evidence that she did not do so because she wanted to show the father that she knew how to protect herself in Australia (presumably as opposed to having him actually arrested).

45. In or about August 2017, the mother says that she informed the father that she wanted to leave and go to a refuge. The mother says that the father replied words to the effect of “Don’t think because you’re in Australia I can’t cause harm to you. I can throw you off the balcony or I can throw you in the hole in the street”.

46. On or about 2 September 2017, the mother says that the father was again physically violent towards the mother after she and the child returned from a wedding. She says that the father took hold of the mother’s hair and attempted to pull her from the vehicle, however was unable to as she still had her seatbelt on. The father, whilst pulling the mother’s hair and whilst she was still restrained in the vehicle, head-butted her several times. X was in the vehicle when this occurred. This time, the mother reported the incident to police and as a result a provisional ADVO was issued and a final ADVO was issued on 5 December 2017.

47. In respect of the incident which occurred on 2 September 2017, the father says in his affidavit that he discovered Facebook messages between the mother and another man named “Mr G”. When the father confronted the mother via telephone (as the mother and X were at a wedding) about this, the mother said “I love him and I will come home and give you X and go”. When they had returned from the wedding in the early hours of 3 September 2017, the father approached their vehicle to get X out and told the mother that she was free to go. The father made X dinner and put her to sleep. The father was asked to go to the police station at around 4:30am. The father denies that he assaulted the mother.

48. The father’s oral evidence was at odds with his affidavit. He said in cross-examination that when the mother arrived home from the wedding and he wanted to take X out of the car, that she told him no but that he still reached into the car over the mother and took the child who was sleeping in the middle of the back passenger seat. The father says that in the struggle to get the child out, his head collided with that of the mother’s. The mother then apparently, after getting out of the car, handed him her mobile phone (in respect of which he was later charged for larceny, but the charges were dropped).

49. On or about 23 January 2018, the mother alleges that the father drove past the mother and yelled “I want my daughter” and about 10 minutes later standing 20 metres away from the mother said “I am going to kill you and your friend. You are bad woman”.

50. The father says that he drove past the mother and X by chance. X is said to have called out to her father “I love you so much” and the mother “I will put you in gaol”. The father denies that he threatened to kill the mother.

51. From about early June 2019, the mother says that she would see the father at X’s school. This occurred almost every second day until the mother called the police on 2 August 2019 after the father started taking photos of X, Mr G and the mother.

52. The father says that a police officer at Suburb H Police Station advised him that he was able to see X at school if there wasn’t any Court order saying that he could not. He further says that after expressing concern about the possibility of getting “in trouble”, the police officer confirmed that he was able to record his daughter, provided he didn’t record other children. As a result, the father attended at X’s school on numerous of occasions.

53. The mother says that on 14 August 2019, the father screamed out at the mother at X’s school “You’ll see what I’m going to do. I’m going to kill you both”.

54. The father says that on 15 August 2019, after the police were called to the school the previous day, the father attended at the school and observed the mother, Mr G and X. The father says that the mother and Mr G gestured towards him and put their rude fingers up, and told X to spit at him. The father says he then observed X walk towards him, however was held back by the mother and Mr G. It is the father’s evidence that he called police to attend as he was concerned that Mr G was acting abusively and aggressively towards him in the presence of X.

55. In February 2021, the mother says that she, Mr G and X were leaving a restaurant after just having lunch. They then saw the father standing outside the restaurant and staring at them. They quickly crossed the street and got into their car, the father however followed them yelling “You are the street woman. You married another man” and “Death is coming towards you”. When the mother and Mr G began recording, the father ceased yelling and swearing and once the recoding ceased said to X “I’ll take you off them. Don’t worry, I’ll take you”. That same day, the mother and Mr G attended at Suburb J Police Station to report the incident.

56. The father’s version of events is that on February 2021, the father saw X with the mother and Mr G. He says that he stood in front of their car to try and see X through the front window. His evidence in cross-examination conflicted with his evidence in chief about standing in front of the mother’s vehicle.  The father says that this occurred at a time where he was experiencing high levels of stress and anxiety after F Contact Service had recently decided to terminate their services. The father concedes that “words were exchanged” between himself and Mr G.

57. The father alleges that the mother resorted to verbally abusive behaviours during arguments and harsh physical punishment of X. The father does not seek to make any submissions in respect of the mother’s capacity to parent arising from his allegations of violence. In any event, the Court does not find such allegations to have been proven on the balance of probabilities.

58. The father became upset and started crying when he was cross-examined about the events surrounding separation, more specifically when he was speaking about finding out that the mother had been unfaithful. It was this matter that after more than 5 years of separation made the father teary. It wasn’t the horrific allegations of violence where he was said to have inflicted serious and grievous bodily harm upon the mother that made him upset nor was it that he hasn’t spent any meaningful time with his daughter for close to 5 years (and no time for 4 years). It was that his wife had apparently been unfaithful to him by communicating with another man on social media.

1. Observing the father while giving his oral evidence, the Court was unconvinced about his sincerity in respect of his feelings regarding the events which occurred on 2-3 September 2017. The Court was also unconvinced about his denials of violence which the mother gave detailed and specific evidence about. The father’s version of events where supplied and his blanket denials, are not accepted. His version of events as to what occurred in the early hours of 3 September 2017 is incongruous. Where the two are in conflict, the Court prefers the evidence of the mother to that of the father.

2. The Court finds that the father perpetrated family violence upon the mother while the parties were in a relationship, that X was present during such times and that the father had continued to act in an intimidating and threatening manner towards the mother following separation.

   Apprehended Violence Orders and Criminal Charges

3. There have been a number of proceedings in the Local Court since separation and the following orders have been made:

   a.On 5 December 2017, the Local Court at Suburb D made a final ADVO for one year and convicted the father of common assault placing him on a good behaviour bond for 2 years.

   b.On 23 January 2018, the Local Court at Suburb H found the father had contravened prohibition/restriction in ADVO and was faced on a further good behaviour bond for 2 years.

   c.On 4 December 2018, at the Local Court at Suburb D an application was made for an extension of the ADVO for a further two years, but no order was made; and

   d.On 10 February 2021, Suburb H police issued a provisional ADVO.

4. On 10 February 2021, the father was charged with stalking or intimidation with intent to cause physical or mental harm under s.13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Both this and the ADVO are currently before the Local Court but are not listed for hearing until 25 October 2022.

   Attempts at time with father

5. From about September 2017 to September 2018, the father spent time with X on approximately 4 or 5 occasions. The mother says that X would return from these visits aggressive “she hits me and bashes me and says bad things”.

6. Despite there being interim orders for the father to spend supervised time with X, the father has spent no time with X since September 2018. However, the following attempts at time with the father and X are said to have occurred:

   a.On 7 September 2019, the mother took X to meet Ms E at Suburb H train station. As soon as X saw Ms E, she began to cry “I’m afraid. I’m afraid”. An exchange occurred between the mother and Ms E and they both attempted to encourage X to go with Ms E. X refused and time did not occur.

   b.On 14 September 2019, the mother again took X to meet Ms E at Suburb H train station. A similar exchange occurred again with X vehemently protesting her reluctance to see her father. The mother says that X said “No, I am going to vomit and I am going to wet myself”. X refused and time did not occur.

   c.On 21 September 2019, 5 October 2019 and 12 October 2019, time did not occur with the father and X. The mother and Ms E agreed that it was best for the parties to try a contact centre as the next option for changeover.  

   d.On 16 November 2019, the mother and X attended at F Contact Centre to attempt changeover. The supervisor, after having spoken to X, asked the mother and X to leave because they had observed X to become uncomfortable at the prospect of seeing her father. The centre did, however, offer to facilitate a supervised visit between the father and X.

   e.On 14 December 2019, the parties attended at F Contact Centre for a scheduled supervised visit between the father and X. The mother says that she could hear X crying in the other room and saying “I don’t want this. I don’t want this”. X return shortly thereafter to the mother, and the father was informed that the visit was cancelled as X was refusing to spend time with him.

   f.On 12 December 2020 (after further interim orders made on 26 November 2020), X refused to leave the car, and supervisors at the contact centre advised the mother that she could leave. Time did not occur in accordance with orders.

   g.On 6 February 2021, X refused to leave the car, and supervisors at the contact centre again advised the mother that she could leave. Time did not occur in accordance with orders. The mother was later notified by the contact centre that they would not be arranging any further supervised visits for X.

7. The oral evidence of Ms E is by and large supportive of the mother’s evidence in respect of the mother’s attempts at encouraging X to spend time with the father.

8. While there is some evidence that Mr G acted contrary to policy of the contact centre on one occasion, there is simply no basis for a finding that the mother and/or her husband have not appropriately encouraged the child to spend time with the father.

   Determination

9. At the time of the interviews for the Family Report, X expressed the view that she did not wish to see her father. This is consistent with the views expressed by X at times when time between her and the father was attempted and her refusal to spend time with the father since September 2018.

10. The father holds the view that if an order was made for X to spend time with him there would be no difficulty with such time occurring as X would be happy to do so. She is, after all, his daughter, and according to the father it would be natural for her to want to see him. The father shows no insight into the difficulties with the relationship with his daughter, and that there does not appear to be any meaningful relationship between them at present. Furthermore, the Court was not convinced by the evidence that the father has a capacity to have a meaningful relationship with X or that she would benefit from such a relationship with him. 

11. This of course is said in light of the need to protect the child from any harm arising not only from the continued and unabating conflict between the parties, but also the risk of psychological harm from being subjected to or exposed to derogatory references to the mother. The Court accepts the mother’s evidence that when the child had spent time with the father after separation, upon return to the mother’s care she exhibited difficult behaviours including being verbally abusive towards the mother. While she is now some years older than at the time she was spending time with the father in 2018, X is still a young girl and vulnerable to negative influence and manipulation. 

12. The Court was assisted by evidence from a Court Child Expert, who ultimately recommended that even if the Court does not find veracity in either parents’ allegations of family violence, but determines that X is at high risk of experiencing a high level of parental conflict, then X ought not spend any time with the father. It was only if the Court ultimately found that the risk to X of experiencing parental conflict was mid to low (and if allegations of violence were not found to have veracity) that the Court Child Expert recommended that she ought to be spending time with the father.

13. The conflict between the parents remains high and there is no evidence that either parent has the capacity to do what is necessary to lessen that conflict.

14. The father’s denials of violence, his behaviour at attending the child’s school in 2018 and his continued lack of understanding and insight into the effects of parental conflict, all speak against a capacity to be able to meet the child’s psychological needs.

15. The Family Report[9] notes as follows:

    Parents who perpetrate family violence tend to show less warmth towards their child/ren; use coercive and manipulative tactics; use inconsistent and harsh discipline; express anger towards child/ren and to be uninvolved in parenting.

    [9] at [101]

16. Therefore, given the findings of violence, there is a risk of harm to X arising from the potential that the father could use coercive and manipulative tactics towards her.

17. Neither parent had demonstrated a capacity or willingness to facilitate a close and continuing relationship between X and the other parent. Such a finding is not only supported by the Family Report, but it is also supported by the evidence of the parties. The mother remains concerned for the child’s psychological safety and development, but conceded that when X is older and more mature, perhaps when she is about 16, she will be more able to withstand manipulation and the father’s potential negative influence. The father’s views of the mother remain negative, including in respect of her alleged infidelity.

18. Given the father’s continued lack of acknowledgment of responsibility for his actions it is likely that he will try to impact his version of events on the child. This too is a risk to the child.

19. As such and taking all of the above matters into consideration, the risks of psychological and emotional harm to the child if she were to spend time with the father are unacceptable.  

20. Supervised time has been tried in the past and it has failed.

21. Even if there were orders for continued supervision of the child’s time with the father, such that some of the risks which have been identified might be ameliorated, it is likely that the supervised time itself would cause the child significant stress and unease as it has in the past, thus itself giving rise to a risk of further harm.

22. In all of the circumstances, the order which is in the child’s best interest is an order for no time, subject to what is said directly below.

23. Noting the finality of an order for no time, the mother’s view that in the future there may be some potential of a benefit to the child spending time with the father and inherent support for X to be able to come to that decision herself when she is a little older, the Court finds that an order for X to spend time with the father in accordance with her wishes once she turns 16 years of age is also an order that is in her best interests.

24. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

83          I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       2 September 2022