Khalid & Hirsch
[2024] FedCFamC2F 1202
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khalid & Hirsch [2024] FedCFamC2F 1202
File number(s): PAC 5083 of 2024 Judgment of: JUDGE STREET Date of judgment: 29 August 2024 Catchwords: FAMILY LAW – PARENTING - issue of telephone communication – use of carriage service to make a threat – audio only communication - parties reached a consent position Legislation: Criminal Code Act1995 (Cth)
Family Law Act 1975 (Cth)
Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 29 August 2024 Place: Sydney Counsel for the Applicant: Mr Cairns Solicitor for the Applicant: Safi Legal Counsel for the Respondent: Mr Farah Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 5083 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KHALID
Applicant
AND: MS HIRSCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
29 AUGUST 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
Parental Responsibility
2.That the Mother shall solely make decisions concerning all major long term decisions for the child X (born in 2012) (hereinafter referred to as "the Child").
3.The Mother is to keep the Father informed in writing in a timely manner as to any major long-term decision she makes regarding the child.
Live with
4.That the Child shall live with the Mother.
Spend time and communicate with
5.That the Father may spend supervised time with the Child every two (2) weeks at B Contact Centre on a week day after school or on a weekend, as can be accommodated by the Contact Service.
6.That in order to give effect to order 5 the following orders shall apply:
6.1 Within seven (7) days of the date of these orders both parents shall contact B Contact Centre to commence intake procedures and both the Mother and the Father shall do all acts and things as required by the Contact Service, including attending any interviews and signing paperwork, to engage the supervision service;
6.2 The Mother and Father shall equally share the costs of the Contact Service;
6.3 Both parties shall comply with the requirements of the Contact Service for changeover, including required location and conduct.
6.4 While spending time with the Child at the Contact Service, the Father must only communicate to the Child in the English language.
7.That upon the Father providing evidence to the Mother that he has completed a parenting course in accordance with order 10 herein, has engaged with a counsellor for a period of at least six (6) months in accordance with orders 11 and 12 herein and has spent time with the Child for not less than six (6) supervised visits, then the father’s time with the child shall be unsupervised for up to four (4) hours each fortnight as agreed in writing between the parents and failing agreement, each alternate Sunday from 12:00 midday until 4:00pm.
8.That upon the commencement of unsupervised time in accordance with order 7 herein, unless otherwise agreed in writing between the parents, changeover shall take place using the B Contact Centre with both parents to equally share the costs of the changeover service.
9.That upon the commencement of unsupervised time in accordance with order 7 herein, the Father may communicate with the Child by telephone every Tuesday at 6:30pm unless otherwise agreed in writing between the parents and the following shall apply to such communication:
9.1 The Mother shall facilitate the Child to make the call to the Father’s telephone number by providing the Child with the telephone in working order;
9.2 The Mother shall encourage the Child to speak with the Father;
9.3 The call shall be by audio only, no video or other means of electronic communication shall be used unless with the written consent of the Mother.
Counselling and Programs
10.That within twelve (12) months of the date of these orders, both parents are to have completed a parenting program appropriate for parents with teenagers such as ‘Tuning into Teens’, ‘Keeping Kids in Mind’ or ‘Bringing Up Great Kids’ and both parents shall provide a certificate of completion to the other parent.
11.That the Father engage with a counsellor for a period of not less than six (6) months with not less than nine (9) completed consultations and for this purpose he is to obtain a Mental Health Care Plan from his general practitioner and follow any recommendations made by the GP and the counsellor.
12.That the Father has the leave of the Court to provide a copy of the Family Report by Court Child Expert, Ms C, to his treating counsellor or psychologist and shall ensure his treating counsellor or psychologist is provided with a copy of the Family Report prior to his first appointment after the date of these orders.
13.That at the conclusion of the requirement for the Father to complete not less than six (6) months of counselling in accordance with order 11 herein, the Father shall request his counsellor to provide written confirmation that the Family Report by Court Child Expert, Ms C was read and considered for the purposes of the counselling and a list of dates and times the Father attended for the counselling sessions and the duration of each session. The Father shall then provide this written confirmation to the Mother or her legal representative for the purposes of order 7 herein.
Restraints
14.That each parent is restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent in the presence or hearing of the Child and shall not allow anyone else to do so in the presence or hearing of the Child.
15.That each parent is restrained from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Child or permitting anyone else to do so.
16.That the Father is restrained from discouraging or interfering in any way with the Child’s medical appointments, medical treatment plan or prescribed medication regime.
17.That the Father is restrained from using the Child in any way as a means to relay information, question or communicate with the Child’s sister or Mother via the Child.
18.That the Father is restrained from encouraging the Child or suggesting to the Child in any manner that the Child could or should use violence or abuse in any form towards his Mother or sister.
19.The Father is restrained from discussing with the child, either by telephone or in person, anything which might allow the Father to identify the Mother’s residence, or anything which concerns the Mother, the Child’s sister or the Mother’s household.
20.That the Father is restrained from publishing or causing anyone else to publish photographs of the Child or the Mother on any internet or social media platform.
21.That pursuant to s 68B of the Family Law Act 1975, the Father is restrained from:
21.1Removing the child from the care of the Mother or such other person with whom the Child may be with;
21.2 Removing the Child from his school or extra-curricular activity;
21.3 Causing another person or persons to remove the child from the care and control of the Mother;
21.4 Attending the Mother’s place of residence or workplace should the Father become aware of these locations.
Information Sharing
22.That these orders are authority for the Father to be able to communicate directly by phone or email with the child’s school/s and receive school reports and other information as to the progress of the child at the discretion of the school.
23.That these orders are authority for the Father to be able to communicate directly by phone or email with the child’s treating medical practitioners and the discretion of the medical practitioner and for this purpose, the mother shall keep the father advised as to the names and contact details of the relevant medical professionals as well as significant appointment dates (such as medication reviews and bi-monthly psychologist appointments for the child).
24.That within fourteen (14) days of the date of these orders, the Mother shall provide a copy of these orders to the Child’s school and to the Child’s treating medical practitioners.
25.That the Mother shall keep the Father informed as to the school in which the child is enrolled.
26.That the Mother shall advise the Father as soon as reasonably practicable in the event that the child suffers a serious illness which requires attention by ambulance, a hospital emergency centre or admission to hospital.
27.That communication between the Father and the Mother for the purposes of these orders shall be by SMS text message unless otherwise agreed between the parents.
28.Both parties are to ensure the other parent is kept up to date as to their telephone number and email address and shall advise the other within twenty-four (24) hours of any change to these details.
29.The Father is to ensure the Mother is kept up to date as to his residential address and shall advise the Mother within twenty-four (24) hours of any change to this address.
Passports and Overseas Travel
30.The Mother is permitted to travel internationally with the Child without the permission of the Father and for this purpose, the Mother is to notify the Father at least twenty-eight (28) days prior to the travel (unless the travel is in relation to a family emergency), of her intention to travel and the Mother is to provide the Father with details of the travel including return ticket, insurance and a general itinerary including her contact details while overseas.
31.In the event the Mother travels with the child in accordance with order 30 herein, then the Father may have time in lieu for any time he may have missed with the child in accordance with order 5 or order 7 herein.
32.The Mother shall have sole parental responsibility in relation to signing all necessary documentation, or organising or obtaining and renewing an Australian Passport for the child as the sole person holding parental responsibility for the child in accordance with order 2 and for this purpose, pursuant to s 11(1)(a) and (b) of the Australian Passports Act 2005 (Cth), these Orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child to be held by the Mother.
Independent Children’s Lawyer
33.The Court makes an no order that either parent pay the costs of the Independent Children’s Lawyer AND THE COURT NOTES THAT the Independent Children’s Lawyer is mandated by NSW Legal Aid to bring cost applications in all matters and that such application has been made in this case.
34.That the Court notes, the ICL shall meet with the Child as soon as reasonably practicable to explain these orders and their effect to the Child and for this purpose, the Mother shall make the Child available to see the ICL as agreed between the ICL and the Mother.
35.That the ICL is discharged upon the completion of Order 26 herein.
Other
36.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 Annexure and these particulars are included in these Orders.
37.All outstanding applications 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 15 September 2022 and were fixed today for a parenting hearing in relation to the remaining child of the relationship between the applicant father (“the father”) and the respondent mother (“the mother”), the child, X, being born in 2012. The parties, consistent with the encouragement of the Court, conducted negotiations with the assistance of the ICL to try and reach consent orders. In the course of that process, it was identified that there was one issue in relation to telephone communications and when they should take place.
The relevant order in the short minutes that have been provided now provides as follows:
9. That upon the commencement of unsupervised time in accordance with order 7 herein, the Father may communicate with the Child by telephone every Tuesday at 6:30pm unless otherwise agreed in writing between the parents and the following shall apply to such communication:
9.1 The Mother shall facilitate the Child to make the call to the Father’s telephone number by providing the Child with the telephone in working order;
9.2 The Mother shall encourage the Child to speak with the Father;
9.3 The call shall be by audio only, no video or other means of electronic communication shall be used unless with the written consent of the Mother.
Mr Farah of Counsel, on behalf of the mother, identified a concern about telephone communication in her household due to the history of the matter and matters addressed in the mother's affidavit evidence. Mr Farah identified that there was a potential concern in relation to the use of telephone calls to engage in conduct, for example, going around the house potentially identifying who was present and what they were doing or where they were, or if on a mobile phone, potentially filming them. The mobile phone issue was resolved by reason of there being an agreement in respect of it being by audio means only.
The issue as to whether there should be telephone communication at all has been the subject of agreement by the parties as reflected in order 9 identified above, other than whether it should occur each Tuesday at 6.30 pm. The mother wanted no such telephone contact. The telephone contact is a potential important step in further advancing a meaningful relationship between the father and the son. The Court is well alive to the potential for that advancement of a relationship to be misused in a way that could be detrimental to both to the advancement of the child and his relationship with his mother, as well as in relation to the safety of the mother.
The Court, at the commencement of the hearing, identified a number of orders that it considered were potentially appropriate orders to add to the orders that had been already drafted by the ICL having looked at the material, in particular, that included what is now order 18 relevantly as follows:
18. That the Father is restrained from encouraging the Child or suggesting to the Child in any manner that the Child could or should use violence or abuse in any form towards his Mother or sister.
Before the making of those consent orders, the Court clarified that the meaning of abuse would include aggressive or threatening behaviour, and it would have a wide interpretation and that understanding was confirmed by the parties.
The Court is satisfied that that restraint is an adequate protection in the circumstance of this case in respect of the risks both to the child, sibling and the mother of the opportunity to communicate with the child being misused by the father. In mid-2020, the father sent the mother a news article on Facebook, via text message, about a husband killing his wife notwithstanding an apprehended domestic violence order that was in place. At the time of that incident an enforceable apprehended domestic violence order dated early 2020, was in effect protecting the mother from the father and included a restraint that the father must not threaten the mother. The Court would add in that regard that the sending of an extremely inappropriate communication by the father to the mother, on its face was potentially capable of being understood to be the use of a carriage service to make a threat. If it constituted such conduct, that is conduct that reflects a crime carrying with it imprisonment for 10 years under s 474.15 of the Criminal Code Act1995 (Cth). The conduct in the sending of that communication was the subject of a completely inadequate explanation by the father in his affidavit. That communication should never have been sent to the mother. Threatening communications using carriage services can give rise to significant custodial sentences.
Further, if there is a contravention of the orders made by this Court, including the restraints, the consequences may well be that there is an immediate suspension of any orders providing for time and communication with the father, and a contravention application, if brought, has a range of potential punishments, if conviction occurs, that include a custodial sentence within the scope of punishments where a conviction occurs. The Court is unlikely to treat lightly any contravention of the restraints in the present case. The father's affidavit did, in relation to that communication, reveal a significant lack of insight, and on one view, diminished parenting capacity in relation to the nature of the communication he sent and its harmful effects.
The Court is satisfied that there are steps being taken under the proposed orders to hopefully enlighten the father in a material way in relation to how he interacts with his child as well as any interaction that occurs with the mother or sibling. It is contrary to the best interests of the child for there to be conflict between the mother and the father. In that regard, it would, for example, be completely inappropriate for one party to video the child when some alleged conflict is taking place between the parents. It should never be the case that the child is being used to denigrate or inflame an encounter by videoing the child. Such conduct would reveal a lack of understanding as to the detrimental effect on the child by including the child in a parental conflict.
The consent orders in the present case will hopefully give rise in the future to there being no such conflict. The court makes these observations in the context of there being significant steps that are required to be taken by the father, in particular, to try and increase his understanding as to the detrimental impact of conflict in the presence of the child, the detrimental impact of undermining the other parent in the presence of the child, and the need to ensure that the child is not exposed to conflict or any conduct, such as filming, that aggravates the incident and which would be entirely inappropriate conduct.
In all these circumstances, the Court has taken into account the relevant provisions in pt 7 of the Family Law Act 1975 (Cth) in relation to the best interest of the child, and on the narrow issue that has been raised, the Court is satisfied that it is appropriate to facilitate telephone communications given the steps that are to be taken and when that telephone communication is to commence.
These are the reasons why the Court determined the issue that was raised before it in the course of assisting the parties to try and reach a consensual position.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 10 September 2024
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