KHALID & KHALID

[2017] FamCA 854

FAMILY COURT OF AUSTRALIA

KHALID & KHALID [2017] FamCA 854

FAMILY LAW – CHILDREN – Whether parent constitutes risk to the child – Where child was withheld

In the Marriage of Rice and Asplund (1979) FLC ¶90-725

Family Law Act 1975 (Cth) s 68L

APPLICANT: Mr Khalid

RESPONDENT: Ms Khalid

FILE NUMBER: CAC 128 of 2014

DATE DELIVERED: 24 October 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Ms Heinze, Infinity Legal

It is ordered until further order that:

1. The orders of Judge Neville of 15 June 2015 remain operative.

2. The father is to return D to the mother forthwith.

3. The mother is restrained from physically disciplining D.

4. On the appointment of an Independent Children’s Lawyer the father is restrained from:

   (a)Causing D to attend a medical practitioner other than in response to a medical emergency;

   (b)Causing D to attend upon a police officer or a welfare officer unless the father first advises the Independent Children’s Lawyer:

   (i)Of his intention to do so;

   (ii)Of the identity of, and contact details for, the person to be attended upon and the details of the appointment; and

   (iii)Prior to attending upon such person provides an authority in writing to that person authorising them to speak to the Independent Children’s Lawyer regarding the matter.

5. The father is refrained from causing D to attend upon a psychologist other than with the written agreement of the mother or order of the Court.

6. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for D and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.  The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at … forthwith copies of all documents thus far filed by them in these proceedings. 

7. Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as they consider relevant to the issues before the Court. 

8. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced or subpoenaed in these proceedings.

9. Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

10. The mother’s application for a contravention filed 18 October 2017 is withdrawn and dismissed.

11. The father’s application filed 17 October 2017 is otherwise dismissed.

12. The mother’s application filed 18 October 2017 is otherwise dismissed.

13. Mr Khalid, born … 1979, and Ms Khalid, born … 1979, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child D, born … 2009, from the Commonwealth of Australia for a period of 24 months. 

14. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.

15. The husband is to file and serve in a single consolidated affidavit for each witness all evidence that he wishes to rely upon in respect of the property proceedings within a period of 28 days from today’s date.

16. The wife is to file and serve any material in response within a further 14 days of that date.

IT IS NOTED THAT

1. The husband has today raised issues in respect of financial disclosure; the parties are on notice that there is an ongoing obligation for full and frank financial disclosure.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 128 of 2014

Mr Khalid

Applicant

And

Ms Khalid

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter there are competing applications between the parties. 

2. The father seeks a change from the mother as the primary carer and a change in sole parental responsibility from the mother to himself.  He asked that D live with him and spend 30 minutes on the telephone per fortnight with the mother.  The basis for this application is that he seeks the protection of D from abuse from the mother; to that end he has withheld D for approximately one week since she was due to be last returned to the mother.

3. The mother seeks the return of D and that orders for the father’s time with D be discharged save for supervised time.  The basis of her application is that she asserts that the father coaches D to make unfounded allegations of harm against the mother and also because the father has withheld D from the mother in contravention of the current orders.

4. The context of these applications is that there are final parenting orders that were made by Judge Neville in June 2015.  At the time of making those orders he records in his judgment that he suspected the parties would not comply with his orders. He also identified an incapacity of the parents to put the dispute behind them and he further accepted that there was some risk that D may be subject to some abuse in the care of either parent.  Judge Neville made orders providing for D to live with the mother, for her to have sole parental responsibility and in general terms for there to be a nine/three split in the time that D spent between her mother and her father.  These orders are currently the subject of re-litigation which is taking place, subject to a future Rice & Asplund[1] determination. 

   [1]In the Marriage of Rice and Asplund (1979) FLC ¶90-725.

5. The applications made by the parties bring into play the primary considerations, with, to the extent that the additional considerations play a role, them being subsumed into the assessment of the primary considerations.  Those primary considerations are giving D the benefit of meaningful relationship with her parents, as each party pursues orders that would diminish significantly such benefit that she might get from the other parent, and also in protecting D from harm, from exposure to abuse and neglect or family violence. 

6. The father relied upon his affidavit of 16 October 2017 and exhibit F1, a letter from Dr V dated 31 August 2017, and exhibit F2, a string of SMS communication between the mother and the father on him withholding D from the mother and communicating to the mother D’s expression in respect of the mother. 

7. The mother relied upon her affidavit of 18 October 2017 and exhibit M1, in particular or restricted to [74] of the family report that was previously prepared for the proceedings before Judge Neville.  That paragraph recorded D as having told the family reporter that her father told her to say that the mother had kicked her when the mother did not. 

8. The father identified the following matters as key to his application, that is, that D on 13 October 2017 told him that the mother had hit her on the face causing her nose to bleed on Monday 9 October 2017.  The mother denies that she has done this.  D reported the same thing to a general practitioner that the father took her to.  The following morning, that is 10 October 2017, he alleges that the mother, being angry, forced D and her brother to walk 2.9 km to school a matter which upset D.  This is reported by a staff member of the school that D attends.  That staff member was a previous witness in proceedings for the husband.  The mother disagrees that this occurred and says that the children like walking to school, which does not explain D’s apparent distress and belief that it was done because the mother was angry.  However the seriousness of the allegation, if seriousness is to be attributed to it, is undermined by the apparent failure of the person reporting it, a member of the school staff, to take the matter any further than to raise it with the father.  The father also asked me to infer that a lack of denial on the part of the mother in the text exchange constituted an admission that she had engaged in the behaviour towards D. I do not infer that it did constitute such an admission.

9. The mother on her part said the father had delayed unreasonably in taking action regarding the alleged blood nose if he was genuinely concerned, that is, he found out on Friday and took D to the doctor on Sunday.  His affidavit also records that he took D to the police but does not say precisely when that occurred.  I am not prepared to draw an adverse inference in respect of the father due to the delay.  She pointed to the fact that there is no indication that the police who interviewed D are taking action. 

10. At the end of the submissions in these interim proceedings the father sought an adjournment until material might be produced by an authority.  I declined to grant the adjournment at that stage of the proceedings.  The nature of interlocutory proceedings means that courts must be circumspect in coming to conclusions in relation to contested facts.  It is because the Court does not have the ability to adequately test the facts at this stage of the proceedings.  The Court, however, is not relieved from assessing the risks that are brought before it. 

11. Here, on either party’s case, D is exposed to an asserted risk at the hands of the other party. The father says that the mother presents a risk of physical abuse; the mother says the father presents a risk of emotional abuse.  Here, on either party’s case, if successful will involve the significant removal of one parent’s involvement in D’s life, that is, acceding to either application does not necessarily remove risk and does significantly remove a parent.  While with each parent it can be said that there is a risk, exemplified on the part of the mother by D’s report to the doctor of receiving the blood nose and exemplified on the part of the father by the same report, given the history of D reporting the father making her falsely complain about the mother.  Those risks do not at present outweigh the negative impact on D of a significant removal of D’s relationship from either of her parents. 

12. The risks on either case can be ameliorated with some safeguards being put into place in the orders.  Accordingly, the orders made by Judge Neville will continue pending a final hearing of this matter with added protections being put in place.  Those added protections will mean that the mother will be unable to physically discipline D and will mean that there will be some restraint on how the father interacts with D with authorities and with treating practitioners.  It will also involve the appointment of an Independent Children’s Lawyer to act in a protective manner in respect of D with her engagement with professionals.

13. The father makes an oral application to D to a psychologist for assessment in order to assess the claims that D has made about being assaulted by the mother.  This will not be permitted unless there is the appointment of a Single Expert or unless there is agreement coming from the mother.  The father has already had contact with a psychologist. That is being done so for the purpose of pursuing the forensic objective of verifying D’s claims in respect of her mother.  The use of that psychologist is at this point tainted and undermined, unless a Single Expert can be appointed. 

14. In this case it is appropriate to appoint an Independent Children’s Lawyer. One was appointed prior to the final hearing of the matter before Judge Neville.  The previous Independent Children’s Lawyer was David Ridge.  The father opposed his reappointment.  Ultimately that will be a matter for the Legal Aid Office and for Mr Ridge depending upon the nature of the objection raised by the father.  The objection that he has raised at this point is one of bias which he particularised as being demonstrated by a failure to interview D in respect of the previous proceedings.  D was then aged four or five years old.  That matter is insufficient to prevent his appointment, and his previous familiarity with the case gives good reason for his appointment. I will request that the Legal Aid Office consider his reappointment as the Independent Children’s Lawyer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 October 2017.

Associate: 

Date:  24 October 2017