Kerimowa & Chong

Case [2025] FedCFamC1F 277

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kerimowa & Chong [2025] FedCFamC1F 277

File number(s): PAC 2709 of 2023
Judgment of: ANDERSON J
Date of judgment: 1 May 2025
Catchwords:

FAMILY LAW – PARENTING – With whom the children live – Where the father and the Independent Children’s Lawyer contend that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation and supervision of the children’s time with the mother into the future – Where the father proposes orders in terms similar to the orders promoted by the Independent Children’s Lawyer – Where the Court finds that there is unacceptable risk that the children will suffer psychological harm in the mother’s care – Where the evidence supports the making of an order that the father have sole parental responsibility for the children.

FAMILY LAW – PARENTING – Where the mother amended her application on the first morning of trial - Where the mother promotes unsupervised time between the children and the father – Where the Court finds that the mother will never voluntarily facilitate time between the children and their father.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother filed an Application in a Proceeding in the evening prior to the competing applications being listed for Closing Submissions – Where the application was dismissed – Where the mother filed a further Application in a Proceeding subsequent to Judgment being reserved – Where the mother seeks a variety of orders including to adduce further evidence – Where the father and the Independent Children’s Lawyer oppose the application – application refused.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61C(3), 61D, 61DAA, 61DAB, 62B, 64B, 65AA, 65D, 65DA(2), 67U, 67ZC, 68B, 117(1)-(2A)
Cases cited:

Attwood & Attwood [2022] FedCFamC2F 6.

Bant v Clayton (2015) 53 Fam LR 621.

Bennett v Bennett (2001) FLC 93–088.

Briginshaw v Briginshaw (1938) 60 CLR 336.

Fitzwater & Fitzwater (2019) 60 Fam LR 212.

Hedlund v Hedlund [2021] FedCFamC1A 84.

Hickson & Matthew [2022] FedCFamC1A 161.

Isles & Nelissen (2022) FLC 94-092.

M v M (1988) 166 CLR 69.

N and S and the Separate Representative (1996) FLC 92-655.

Norton & Landell (Consent Final Parenting Orders) [2015] FamCA 96.

PBF & TRF (2004) 33 FamLR 123.

Slater & Light [2013] 48 Fam LR 573.

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
Division: Division 1 First Instance
Number of paragraphs: 215
Date of last submission/s: 29 April 2025
Date of hearing: 10 – 14 March 2025, 27 March 2025 and 29 April 2025
Place: Parramatta
Counsel for the Applicant: Ms Hayward
Solicitor for the Applicant: Adams & Partners Lawyers
Counsel for the Respondent Mr McCaw (10 – 13 March 2025)
Solicitor for the Respondent Kathryn Renshall Lawyers (10 – 13 March 2025); Litigant in person (14 March, 27 March and 29 April…

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AGLC
Kerimowa & Chong [2025] FedCFamC1F 277
Case
[2025] FedCFamC1F 277
Decision Date

CaseChat Overview and Summary

In the case of Kerimowa v Chong, the Federal Circuit and Family Court of Australia (Division 1) dealt with a dispute regarding the living arrangements and parental responsibilities of two children, a boy aged ten and a girl aged seven. The father sought sole parental responsibility for the children, arguing that the mother posed a significant risk of psychological harm due to her alleged psychological abuse. The Independent Children's Lawyer supported the father's application. Conversely, the mother initially promoted unsupervised time between the children and their father but later changed her position.

The court had to decide on several legal issues, including whether there was an unacceptable risk of psychological harm to the children if they spent time with their mother, and whether the mother's last-minute changes to her application and her subsequent attempts to adduce further evidence should be allowed. The court also had to consider the implications of the mother's alleged cognitive disability and her attempts to assert this in the proceedings.

The court found that there was indeed an unacceptable risk of psychological harm to the children if they spent unsupervised time with their mother. The court noted the mother's history of psychological abuse and her unwillingness to voluntarily facilitate contact between the children and their father. The mother's last-minute changes to her application and her attempts to adduce further evidence were not accepted by the court, which found her behaviour concerning and disruptive. The court granted the father sole parental responsibility and ordered that the children live with him, with limited and supervised contact with the mother. Additionally, the court issued an injunction restraining the mother from coming within 200 metres of the children’s residence, school, or any place where they were attending medical or allied health appointments.

The final orders of the court mandated that the father have sole parental responsibility for the children, that the children live with the father, and that the mother be restrained from spending time with the children or communicating with them for a period of six months. After this period, the children would spend time with the mother on supervised occasions. The court also ordered that the mother pay her share of the Independent Children’s Lawyer's costs.

Orders

Orders of the court

PAC 2709 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KERIMOWA

Applicant

AND:

MS CHONG

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUSTICE ANDERSON

DATE OF ORDER:

1 MAY 2025

THE COURT ORDERS THAT:

1. All previous parenting Orders are discharged.

Parental Responsibility

2. The Applicant father (“the father”) shall have sole parental responsibility for the children, X born 2014 and Z born 2017 (“the children”) and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (‘the Act’) affecting the children.

Delivery up of the children and/or a recovery order

3. The Respondent mother (“the mother”) shall deliver up the children to the father at the Court Children’s Service located at the Parramatta Registry of the Federal Circuit and Family Court of Australia (Division One) by 9.45am on 1 May 2025 and for this purpose, a Court Child Expert as nominated by the Senior Court Child Expert shall be in attendance.

4. In the event that the mother fails to comply with the terms of Order 3 herein, then pursuant to s 67U of the Act a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the children X born 2014 and Z born 2017 and deliver the children to the father forthwith, he being the person entitled to have the said children live with him pursuant to Orders made on 1 May 2025 in the Federal Circuit and Family Court of Australia (Division One).

5. On the delivery up of the children pursuant to the terms of Order 3 herein and delivery of this Judgment:

(a) The mother is to be escorted by Court security out of the Parramatta Registry of the Federal Circuit and Family Court of Australia (Division One) forthwith and thereafter, the mother is restrained and an injunction is hereby granted restraining her from remaining within two hundred (200) metres of the Parramatta Registry of the Federal Circuit and Family Court of Australia (Division One) such injunction to be discharged at 4.00pm on 1 May 2025; and

(b) The Independent Children’s Lawyer is requested to explain to the children in the presence of the Family Consultant the Orders made by the Court.

Parenting arrangements

6. On the delivery up of the children pursuant to the terms of Order 3 herein or the recovery of the children pursuant to the terms of Order 4 herein (whichever is the earlier), the children live with the father.

7. For a period of six months from the date of these Orders (“the moratorium period”), the mother be restrained and an injunction is hereby granted restraining the mother, her servants and/or agents from spending time with the children or communicating with the children by any means whatsoever including by email communication, telephone, SMS text message or any form of social media.

8. On completion of the moratorium period:

(a) The children do spend time with the mother on one occasion in December 2025; and

(b) Thereafter, the children spend time with the mother on four (4) occasions each calendar year.

9. It is a condition of Order 8 herein that:

(a) such time not exceed three hours on any occasion;

(b) such time be supervised by a supervision agency nominated by the mother and at such times as may be agreed between the parties in writing or failing agreement, on a date and time on the last week of the months March, June, September and December in each calendar year;

(c) such time occur in the Sydney Metropolitan Area.

10. In order to facilitate Orders 8 and 9 herein:

(a) The mother shall within fourteen (14) days of this Order nominate the supervision service to be utilised by the parties and within 28 days of this Order, the parties shall do all acts and things and sign all documents as may be necessary for the purposes of undertaking any intake procedures;

(b) The mother shall meet the costs of the supervision agency nominated by her pursuant to the terms of Order 9 herein.

Communication

11. Each parent shall communicate with the other in relation to the care, welfare and development of the children and/or the operation of these Orders by:

(a) The “AppClose” parenting application; or

(b) SMS Text Message or telephone call in the event of an emergency;

(c) Such other method as agreed between the parties in writing.

Provision of Information

12. The father shall keep the mother advised of any serious illness or injury suffered by the children (or either of them) requiring medical attention.

13. On one occasion per calendar month, the father shall provide the mother with a brief written update in relation to the children’s schooling, health and wellbeing.

Provision of Information to the children’s school, treating medical practitioners and allied health professionals

14. The father shall be at liberty to provide copies of the following documents to any educational institution attended by the children (or either of them) or any medical practitioner, psychologist, psychiatrist or allied health professional attended on by the children (or either of them):

(a) The report of Dr B, clinical and forensic psychologist, dated 12 November 2024;

(b) The Orders made this day;

(c) My Reasons for Judgment.

Restraints

15. Pursuant to s 68B of the Act, the mother be restrained, and an injunction is hereby granted restraining her from:

(a) Attending at, or being within, 200 metres of the residential address of the father, or any premises at which the children are living or temporarily residing; and

(b) Attending at, or being within 200 metres of the children’s school, or any venue where the children are undertaking extracurricular activities or attending medical and allied health appointments.

Application by the mother to adduce further evidence

16. The Application in a Proceeding filed by the mother on 24 April 2025 be dismissed.

Costs

17. Within 28 days, the mother do pay to Legal Aid New South Wales her share of the costs of the Independent Children’s Lawyer fixed in a sum of $8,037.22 including GST.

18. Within 28 days, father do pay to Legal Aid New South Wales his share of the costs of the Independent Children’s Lawyer fixed in a sum of $8,037.22 including GST.

Discharge of Independent Children’s Lawyer

19. On compliance with the terms of Order 5(b) herein, the appointment of the Independent Children’s Lawyer be discharged.

Other

20. Pursuant to s 62B of the Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

21. Pursuant to s 65DA(2) of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.

22. All other applications pursuant to Part VII of the Act are dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Shortcomings in the mother’s capacity to provide for the children’s needs, and in particular the children’s emotional need to have a relationship with their father free from psychological harm is a salient consideration in these proceedings. For these reasons, I have determined that it is in the children’s best interests to live with the father and spend limited time with the mother on a supervised basis.BACKGROUND The father is aged 34 years.[4] Three years after the father completed his secondary education, the father joined the Australian Defence Forces. He has been employed by the Australian Defence Forces ever since although he now works in an specialised role.[5][4] Father’s affidavit filed 20 December 2024, paragraph 2.[5] Family Report dated 12 November 2024, paragraph 147. The mother is aged 38 years.[6] She is employed by a government department as an information professional. In order to fulfil that role, the mother has held a specific level of security clearance since 2019.[7][6] Mother’s affidavit filed 31 January 2025, paragraph 2.[7] Mother’s affidavit filed 31 January 2025, paragraphs 6 and 7. The parties commenced cohabitation in mid-2013, married a short time later, and separated on a final basis in September 2022.[8][8] Father’s affidavit filed 20 December 2024, paragraph 7. As discussed, there are two children of the marriage, namely, a male child aged ten years and a female child aged seven years. The male child has been diagnosed with an Autism Spectrum Disorder and an Attention Deficit Hyperactivity Disorder.[9] The father concedes that the male child has these disorders. The single expert engaged by the parties to prepare a Family Report has recommended that the parties facilitate the female child’s attendance on a paediatrician so that she be assessed for an Attention Deficit Hyperactivity Disorder[10].[9] Mother’s affidavit filed 31 January 2025, paragraph 51.[10] Family Report dated 12 November 2024, paragraph 332. The father says that the parties separated under one roof in September 2022. The mother says the parties separated a month earlier but whatever the scenario, the parties’ separation necessitated a change of residence for the mother and the children on account of the parties becoming ineligible for defence housing.[11][11] Father’s affidavit filed 20 December 2024, paragraph 20; Mother’s affidavit filed 31 January 2025, paragraph 73. At separation, the father says that the parties agreed that the children would spend two nights per week with the father.[12] The mother agrees that the parties arrived at arrangements amicably and that the children spent overnight time with the father on the weekend of 24 and 25 September 2022 and the weekend of 30 September 2022 and 1 October 2022.[13] The father gave oral evidence to the effect that the parties sought to document their arrangement with Services Australia for the purposes of the assessment of child support.[12] Father’s affidavit filed 20 December 2024, paragraph 22.[13] Mother’s affidavit filed 31 January 2025, paragraphs 82 and 84; Family Report dated 12 November 2024, paragraph 111.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the commencement of the father’s closing submissions, the father’s counsel orally amended his application to support the orders promoted by the Independent Children’s Lawyer. However, the father declined to support an order promoted by the Independent Children's Lawyer to the effect that he be obliged to provide to the mother copies of any medical reports prepared by any treating specialist for the children.WITHDRAWAL OF THE MOTHER’S LEGAL REPRESENTATIVES AND APPLICATIONS MADE BY THE MOTHER SUBSEQUENT TO JUDGMENT BEING RESERVED On the morning of the third day of trial, the mother’s solicitor and counsel sought to withdraw as the mother’s legal representatives on the basis of a conflict between them. I granted the application save that on making enquiry of the mother’s counsel, he and his solicitor agreed to remain at the Bar Table until the conclusion of the mother’s cross-examination. This was in circumstances where cross-examination of the mother commenced at about 2.48pm the previous afternoon. When granting the application, I made it clear to the mother and her legal representatives that:(a)The trial would continue until its completion;(b)The mother would either need to arrange legal representation or understand that she would be obliged to cross-examine the single expert and make closing submissions as a self-represented litigant;(c)They ought to obtain a copy of the transcript for the first and second days of trial for the mother’s consideration;(d)The mother’s solicitor and counsel ought to provide the mother with notes, which they took during the trial. The mother cross-examined the single expert on Friday 14 March 2025. Although she initially declined to do so on the basis that she did not have the relevant qualifications, I asked her to draft a list of questions, which were then put to the single expert by counsel for the Independent Children’s Lawyer on behalf of the mother. The mother also put several propositions to the single expert herself. At the conclusion of the cross-examination, I adjourned the hearing until Friday 21 March 2024 for the purpose of closing submissions. On 20 March 2024, and by email communication directed to my Chambers, the mother sought an adjournment of the date for closing submissions in circumstances where she said:(a)Her former solicitors had not received the transcript of the hearing with respect to the first two days of trial; and(b)She was seeking assistance from “the Intellectual Disability Rights Service Inc and/or the Law Society” in circumstances where she asserted that she has a “recognised cognitive disability under the Disability Discrimination Act 1992”. The mother did not refer to the existence of any cognitive disability in her affidavit filed on 31 January 2025. I ultimately granted the mother’s application on the basis that she had not received the transcript, and I adjourned closing submissions to Thursday 27 March 2025. At 9.18 pm on the evening prior, a solicitor based in Sydney emailed to the Parramatta Registry an Application in a Proceeding together with an Affidavit in support.[36] The application sought the re-opening of the evidence on the following basis:(a)That following the father’s cross-examination on Monday 10 March 2025, she returned home and retrieved the hard drive, which she says contained child pornography (supra);(b)That having run an “algorithm” on the hard drive for eight hours, she discovered a large number of deleted files “that contained child exploitation material”;(c)On Wednesday 12 March 2025, she delivered the hard drive to the Suburb C Police Station. This action occurred on the same day as the mother’s solicitors sought to withdraw as the mother’s legal representatives.[36] Exhibit W4.

Ratio Decidendi

Legal Principle Established

An injunction is not, by definition, a “parenting order”.[178] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[179] Section 68B of the Act is not, therefore, technically subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood & Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.[180](Emphasis added)[178] Hedlund v Hedlund [2021] FedCFamC1A 84 [118].[179] Family Law Act 1975 (Cth) s 65D(1), s 67ZC. [180] Attwood & Attwood [2022] FedCFamC2F 6, [31]–[33]. Given my concerns with respect to the mother’s behaviour, I find that it is appropriate for me to make an order restraining the mother from coming within 200 metres of any place where the children reside or within 200 metres of any place where the children are attending at school, participating in extracurricular activities or attending medical and allied health appointments. Application by the Independent Children’s Lawyer for costs