KHALID & KHALID
[2015] FCCA 1597
•15 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHALID & KHALID | [2015] FCCA 1597 |
| Catchwords: FAMILY LAW – Very significant parental conflict involving young child (and step-child) – evidence of both parties unreliable – only independent evidence from family consultants – very strong views of ICL regarding lack of reliable evidence – allegations of family violence from both parties (and denied by both parties) – children exposed to family violence. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA(1) & (5), 67U |
| Collu & Rinaldo [2010] FamCAFC 53 Sigley v Evor (2011) 44 Fam LR 439 |
| Applicant: | MR KHALID |
| Respondent: | MS KHALID |
| File Number: | CAC 128 of 2014 |
| Judgment of: | Judge Neville |
| Hearing dates: | 29 & 30 January 2015 |
| Date of Last Submission: | 25 March 2015 |
| Delivered at: | Canberra |
| Delivered on: | 15 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms J Houghton |
| Solicitors for the Respondent: | Infinity Legal, Canberra |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mr D. Ridge |
| Solicitors for the Independent Children's Lawyer: | Barker & Barker, Canberra |
ORDERS
The Mother have sole parental responsibility for the children [X] born [omitted] 2005 and [Y] born [omitted] 2009.
The children live with the Mother.
There be no orders regarding time between [X] and the Father, save that the Mother should encourage [X] to spend time with the Father.
Until the commencement of term 3, 2015 [Y] spend time with the Father from after school Wednesday to before school Thursday each week, with changeovers to occur at [Y]’s school.
From the commencement of Term 4 2015 [Y] spend time with the Father from after school Friday to before school Monday (and continuing until before school Tuesday if the Monday is a public holiday) on alternate weekends, commencing on the second Friday of each school term, with changeovers to occur at [Y]’s school.
If the Father fails to send [Y] to school on a day when [Y] is due to return to the Mother’s care changeovers take place at [Y]’s school at the end of the school day in any event, and the Father’s time with [Y] is suspended unless and until the Father provides a medical certificate in respect of [Y]’s absence from school.
Subject to any other agreement in writing between the parties and approved by the ICL, the school holidays should be shared equally between the parties in relation to [Y], and in accordance with [X]’s wishes; the Mother should encourage [X] to resume spending some time with the Father, even on a graduated basis.
IT IS NOTED that publication of this judgment under the pseudonym Khalid & Khalid is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 128 of 2014
| MR KHALID |
Applicant
And
| MS KHALID |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was heard over two days in late January 2015. Although there is a property dimension to it, the trial focussed (as do these reasons) primarily on parenting orders that concern 5½ year old [Y], who is the only child (a daughter) of the relationship. The Mother has an older (aged 9½) son ([X]) from an earlier relationship who, the Father (who is originally from Bangladesh) asserted, was also parented by him throughout the parties’ relationship. This was largely not disputed by the Mother (who is originally from India), at least for the bulk of the parents’ relationship. Since final separation in mid 2014, [X] has not spent any time with Mr Khalid.
In written submissions for an earlier contest in December 2014, the experienced independent children’s lawyer (“ICL”) referred to the struggle between the parties as a “tug of war.” Indeed, it is: and it is much worse, primarily because, as the parties conceded, they cannot parent co-operatively, they cannot communicate, and they do not trust each other.[1]
[1] Among other things, see the Father’s confirmation of his inability to communicate with the Mother: Transcript (29th January 2015) pp.29, 30 & 31 and the general preceding discussion. Hereafter, any transcript references will simply be “T” followed by the relevant page number.
After noting in 27 paragraphs the [alleged] lies told by the Mother in her oral and affidavit evidence and that he was forced to reconcile with her, and a further seven paragraphs that set out the Mother’s [alleged] violence directed towards the children, three paragraphs why the family report was flawed and should be withdrawn, and a further four paragraphs how the Mother had coached the children, the Father stated in his late-filed submissions (at para.78): “This is a simple case of revenge and abuse of system [sic].”
Quite succinctly, in his written submissions (at para.6), the ICL said: “in considering the legislative pathway, it is submitted that your Honour will quickly find that this leads to a “dead end”.” The ICL further submitted (at para.8): “The parents of [Y] have shown themselves to be almost completely incapable of acting in a co-operative manner in respect of care arrangements for [Y]. The Court has numerous and appalling examples of behaviour that has exhibited an inability for the parents to co-parent.” Respectfully, in very large measure, I agree.
From the Court’s perspective, it is almost a waste of time to make orders because there is little prospect of any orders being complied with. I expressed this concern a number of times early in the trial.[2] Unfortunately, my doleful prognosis was not mollified at the end of the hearing. That said, rather miraculously, the orders made on 20th March have, the Court has reliably been advised by the ICL, been complied with!
[2] See, for example, T10 & 11.
Quite early in the trial, the experienced Counsel for the Mother expressed a similar concern. Counsel said (emphasis added):[3]
… it is disappointing that there has been such noncompliance with the orders, and clearly there’s significant problems. But it appears that no matter who the child is with, the child forms a view they don’t want to go to the other party. So the Father accuses the Mother of coaching the children. Therefore he obviously thinks the children are capable of being coached. The Mother thinks he’s coaching the children, or at least the daughter. When the child is with the Mother she doesn’t want to return to the Father. When the child is with the Father she doesn’t want to return to the Father [sic: “Mother”].
[3] T 11 – 12.
The ICL shared the Court’s concern about the ongoing frustrations arising from the non-compliance with orders[4] – both in relation to parenting as well as the failure, notably by the Father/Husband in relation to proper disclosure in the property aspect of the matter, despite repeated promises by him to provide the information sought, and in the face of disclosure orders by the Court.
[4] Among other places, see T 12 & 14.
At the end of the highly contested trial, further interim parenting orders concerning [only] [Y] were made to cover the period between then and the making of final orders.
These reasons relate to the interim orders made on 30th January, further orders were made on 20th March (primarily procedural orders in relation to property and further interim parenting orders), as well as the final orders which the Court considers to be in [Y]’s best interests, pursuant to s.60CA of the Family Law Act 1975 (“the Act”). The circumstances surrounding the 20th March 2015 orders were slightly different, essentially because the Father had promised to but did not engage either in relation to regularly promised disclosure of documents for the property aspect of the proceedings, or in the filing of written submissions in relation to parenting, as ordered by the Court at the end of the trial, and also pursuant to orders made on 17th March.[5]
[5] The Court is aware of an Application in an Appeal by the Father. For completeness, and if it be necessary to do note, these reasons should be taken as the relevant reasons for that Application.
Subject to what is set out later in these reasons, all of the orders to which I have referred, unsurprisingly in the circumstances, rely upon the same factual base. As already intimated, and as set out in detail below, the factual sub-stratum for the orders is both volatile and quite unstable: hence the observation (and many similar comments throughout these reasons) that the Court has little confidence in the utility and or efficacy of parenting orders in the current matter. The same is certainly true with respect to procedural orders; and the Court will doubtless face similar difficulties in relation to property orders in due course if those matters are not resolved.
Unfortunately, the evidence of the parties was quite unreliable: each parent, in different ways, was either selective in the memory or recollection of events, and or, by way of general assessment, unresponsive to questions – even though it often took an inordinately long time to get an answer that was remotely responsive to the question asked. In part, this explains why the transcript of the two day hearing runs to just under 250 pages. Respectfully, combing or ploughing through it is both an enervating exercise (as it often was sitting through the trial itself), and certainly an unenlightening one. It only confirmed (a) the lack of assistance from the parties in providing a proper evidentiary testing of evidence, (b) the complete inability of the parents to co-parent, and (c) the utterly fraught exercise and essential futility of making orders because they will not be complied with in relation to both parenting and property.
“Friable” is defined in the Macquarie Dictionary (Fourth Edition) as “easily crumbled or reduced to powder.” This is also an apt description of the parenting relationship between the parties, and accordingly why the evidentiary base for the Court’s orders is necessarily so problematic.
Given the difficult, unreliable and in some ways capricious nature of the parties’ evidence (save that the Father’s sister’s evidence in relation to a discrete matter was, in my view, quite good and reliable), much more so than usual I am heavily reliant on the observations of the experienced family consultants who prepared the two reports before the Court. Indeed, (a) the parties’ evidence is treated in these reasons quite summarily, and (b) the extracts from and comments by the family consultants are considered in detail at the outset.
I should also note here that in the Father’s very late-filed affidavit (filed 28th January 2015), at para.42, he sought that another family report be prepared. As set out in paras.35 – 41 of this affidavit, he was dissatisfied with the Report prepared by Ms C, and in particular Ms C not speaking with [Y] (which matter I note and consider later in these reasons). In the result, however, no formal application was made by him for the preparation of a further report.
At the conclusion of the trial, I made orders for the provision of written submissions by the parties and the ICL. The Father did not provide submissions in accordance with the time-table directed by the Court; he provided his submissions only in late March, some five weeks or so late and after the orders of 20th March were made. The absence of the Father’s submissions was formally noted in those orders (Order 14). This, together with the usual excessive volume of matters before the Court (and a short, unexpected stint in hospital by me), has led to some delay in the production of these reasons.
These reasons proceed as follows: (a) orders sought, (b) chronology, (c) annotated procedural history, (d) expert evidence (family consultants), (e) [qualified] evidence of the parties, (f) interim orders of 20th March, (g) submissions, (h) consideration of statutory scaffold/pathway, and (i) consideration and disposition (final orders).
Orders Sought:
Applicant Father’s Final Orders Sought (as in the AMENDED Initiating Application filed 30 May 2014):
1.Both children live with the Father.2.That the children [X] born [omitted] 2005 and [Y] born [omitted] 2009 (“the children”) live with the father.
3.That the children spend time with the mother as agreed or as ordered by this Court.
4.That the father be granted leave to further amend his application upon the release of a Family Report and/or the mother filing her response
Respondent Mother’s Amended Minutes of Orders Sought (filed in Court on 29 January 2015)
5.That the children [X] born [omitted] 2005 (“[X]”) and [Y] born [omitted] 2009 (“[Y]”) live the mother;
6.That the Mother have sole parental responsibility for the Children.
7.That [X] spend time with the Father in
accordance with his wishesas agreed between the parties.
8.That until [Y] reaches school age she will spend time with the Father as follows:
a.Each alternate weekend from 5.00pm Friday until 5.00pm on Sunday; and
b.In the ‘off week’, from 5.00pm Wednesday until 9.00am Thursday.
9.That upon [Y] reaching school age she will spend time with the Father as follows:
a.Each alternate weekend from after school Friday until before school Monday,such time suspended during school holiday periods; and
b.Each Wednesday from after school until before school Thursday, such time suspended during school holiday periods.
10.That upon [Y] reaching school age the child will spend time with the Father during school holiday periods as follows:
a.For the first half of the first, second and third term school holiday periods, with changeover to occur on the middle day of the school holidays at 5.00pm; and
b.For two weeks during the Christmas school holidays period as agreed between the parties.
c.From 8.30am the Saturday immediately preceding Father’s day to 5:00pm Father’s day;
d.From 8.30am on the Father’s birthday to 8.30am the following day;
e.In odd numbered years from 2.00pm on Eid until 2.00pm the following day;
f.In odd numbered years from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and
g.In even numbered years from 2.00pm Christmas Day until 2.00pm Boxing Day.
11.That upon the Mother giving the Father eight weeks’ notice the time the Child spends with the Father pursuant to Order 4, 5 and 7 can be suspended on up to four occasions each year;
12.Notwithstanding the above Orders, [Y] will spend time with the Mother as follows:
a.From 8.30am the Saturday immediately preceding Mother’s day to 5:00pm Mother’s day; and
b.From 8.30am on the Mother’s birthday until 8.30am the following day; and
c.In even number years from 2.00pm on Eid until 2.00pm the following day.
13.That changeovers will occur as agreed, and failing agreement at the Children’s school, and at all other times in at the McDonalds in [omitted], and the Father be restrained from attending changeovers;
14.That the parents shall give each other at least 24 hours’ notice where practicable if he or she is unable to spend time with the [X] or [Y];
15.That [X] and [Y] have liberty to contact the parent which whom they are not residing at any reasonable time when in the care of the other parent, and the parent with whom the children are not residing have liberty to contact the children at any reasonable time when the children are not living with them;
16.That this Order is authority to any medical practitioner, dentist or therapist who provides treatment or diagnosis to [Y] or [X] to provide any and all information requested by either parent;
17.That each of the parents inform the other of the date and time of any appointment that [Y] or [X] has with treating medical practitioners and specialists;
18.That each parent shall be at liberty to contact any school at which [Y] or [X] attends to obtain information about their academic progress and activities, including school reports, school photos and each parent is at liberty to attend any school function or activity at which parents are normally invited to attend;
19.That the Father, his servants and agents be restrained from removing [Y] and [X] from the Commonwealth of Australia without obtaining the Mother’s written consent;
20.That the Mother will not unreasonably withhold consent in relation to Order 14 above;
21.That in the event that [Y] or [X] travel with the Father overseas the Father will provide to the Mother the following:
a.A travel itinerary including accommodation details, departure and arrival dates and airline details no less than 30 days prior to the proposed departure;
b.Copy of each child’s fully paid return airfares within 30 days of the proposed departure date;
c.Copy of the travel insurance for the proposed holidays;
d.Copy of any relevant visas obtained on behalf of each child for the purposes of overseas travel;
e.Copy of any medical certificate evidencing travel immunisations or other medical treatment required for each child to travel overseas; and
f.Telephone contact details where the Mother can contact the children at all reasonable times while the children are overseas.
22.That the Mother hold [Y] and [X]’s passport at all times;
23.That the parents do all things and sign all documents as may be necessary to obtain or renew either child’s passport six months prior to expiry;
24.In default of either parent doing all things and signing all documents as may be necessary to renew either child’s passport, pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia may be permitted to sign all such documents in the name of the Father or the Mother and do all such things and act necessary to enable a passport to issue for the child;
25.That the Father be restrained from communicating with the Mother except by email, SMS text message and via a communication book;
26.That each of the parents be and are hereby restrained from speaking about Court related proceedings, either to the Children or in their presence, or allowing any other person to do so; and
27.That each of the parents be and are hereby restrained from speaking in a derogatory manner about the other parent, either to the Child or in their presence, or allowing any other person to do so.
28.Pursuant to section 66D of the Family Law Act 1975 the Father pay child maintenance for the child [X] born [omitted] 2005 to the Mother in the amount $500.00 per week.
ICL - Final Orders Sought (filed in Court on 29 January 2015):
1.That the mother have sole parental responsibility for the children [X] born [omitted] 2005 and [Y] born [omitted] 2009.
2.That the children live with the mother.
3.That there be no orders regarding time between [X] and the father.
4.That for terms 1 and 2 2015 [Y] spend time with the father from after school Wednesday to before school Thursday each week, with changeovers to occur at [Y]’s school.
5.That from Term 3 2015 [Y] spend time with the father from after school Friday to before school Monday (and continuing until before school Tuesday if the Monday is a public holiday) on alternate weekends, commencing on the second Friday of each school term, with changeovers to occur at [Y]’s school.
6.That if the father fails to send [Y] to school on a day when [Y] is due to return to the mother’s care changeovers take place at [Y]’s school at the end of the school day in any event, and the father’s time with [Y] is suspended unless and until the father provides a medical certificate in respect of [Y]’s absence from school.
Chronology
It is not my usual practice to include a chronology in reasons for final orders unless there is good reason to do so. In my view, it is helpful to include it in this matter because it provides a convenient “snap-shot” of the history of relevant matters generally and particularly the escalation of difficulties in more recent times, notably regarding “disclosures” by [Y], the [frequent] use of domestic violence orders, and the multiple occasions where one child or other refused to go with the other parent.
In the light of the summarised history below, I might also note here (as I do elsewhere) that neither parent, in my view, was a particularly credible witness. This unfortunately negative assessment is based on the very regular engagement with them in the large number of procedural and other hearings over the course of the matter (including their regular non-compliance with orders), and most particularly from their evidence during the trial. Both of them would say or do almost anything to achieve what they perceived at any one time to be in their own best interests. They would (and do to the degree possible) certainly have the children’s best interests at heart, to be sure, as a general proposition, but their main focus was either on their own interests and or (or especially) on thwarting the interests of the other parent. In my view, this was particularly so in the case of the Father. As I note later, his written submissions were little more than an extended criticism and denigration of the Mother in every respect.
As well, the chronology notes the somewhat curious circumstance where the parties sought to reconcile in early 2014, and not for the first time. Respectfully, in all of the circumstances that attempt was destined to fail - which the Mother seemed to accept in certain respects in her affidavit material where she said that she came under significant cultural and religious pressure from the local Islamic community to reconcile with her Husband, which she sought to do in April 2014.[6]
[6] Among other places, see the Mother’s affidavit filed 18th September 2014, paras.53 – 57.
The chronology, prepared by the ICL, reads as follows (emphasis provided by the ICL):
| Date | Event |
| [omitted] 1979 | Mr Khalid (“H”) born in Bangladesh (now aged 35 years) |
| [omitted] 1979 | Ms Khalid (“W”) born in India (now aged 35 years) |
| [omitted] 2005 | [X] born (now aged 9 years) |
| 02/2007 | W and [X]’s father divorce (affid H 04/02/2014 para.3) |
| [omitted] 2007 | H & W marry in India in Muslim ceremony |
| 04/09/2007 | H & W move to Australia |
| [omitted] 2007 | H & W marry in Australia |
| [omitted] 2009 | [Y] born (now aged 5 years) |
| 2011 | W, [X] & [Y] travel to India without H |
| Later in 2011 | H, W, [X] & [Y] travel to India & Bangladesh |
| 08/05/2013 | H returns from overseas – dispute over Notebook for [X] and other issues |
| 07/06/2013 | [Y] unwell, H & W argue, H alleges W assaulted him, Police attend |
| 07/07/2013 | W alleges H was violent towards her (affid 30/01/2014 para.56) |
| 29/09/2013 | H’s sister Ms T arrives in Australia |
| 08/10/2013 | W to India with [X] & [Y] |
| 12/2013 | H joins W and children in India, then to Bangladesh (24/12/2013) |
| 28/12/2013 | [X] discloses to W alleged attempted sexual abuse |
| 08/01/2014 | W and [X] go to India |
| 15/01/2014 | H and [Y] return to Australia |
| 24/01/2014 | W attends H’s home and leaves with [Y] |
| 26/01/2014 | W and 2 children return to H’s home, Police attend |
| 27/01/2014 | H & W separate (affid W 30/01/2014 para.3) |
| 28/01/2014 | W obtains emergency accommodation for herself & the children. (H comments: Not emergency. Accommodation for W & [X]) |
| 29/01/2014 | W obtains interim DVO against H |
| 30/01/2014 | Recovery Order in favour of W issues |
| 01/04/2014 | H & W reconcile and recommence cohabitation |
| 25/04/2014 | H takes passports of W & the children and returns to Australia. (H comments: Alleged) |
| 14/05/2014 | W and both children return to Australia after seeking assistance from the Australian High Commission in Dhaka. (H comments: Alleged) |
| 06/02/2014 | Order that both children live with W, spend alternate weekends & alternate Wednesdays overnight with H |
| 11/03/2014 | Family Consultant Memo of Ms W released |
| 25/03/2014 | H & W both file Notices of Discontinuance – attempt reconciliation |
| 19/04/2014 | H & W & both children travel to Bangladesh |
| 26/04/2014 | H returns to Australia |
| 29/04/2014 | H & W separate on a final basis (W affid 14/01/2015 para.5) |
| 10/05/2014 | H & W separate (H affid 20/05/2014 para.2) |
| 14/05/2014 | W and both children return to Australia |
| 15/05/2014 | W obtains further interim DVO against H |
| 19/05/2014 | H applies for DVO against W |
| 20/05/2014 | H files fresh Initiating Application |
| 03/06/2014 | Orders by consent – H spend specified supervised time pending further hearing, ICL appointment ordered |
| 05/06/2014 | Changeover incident involving [X] (at petrol station) |
| 10/06/2014 | Section 69ZW report released |
| 04/07/2014 | Orders – both children live with M, spend time with F, changeovers at Marymead |
| 25/07/2014 | Changeover Marymead – [X] refuses, [Y] goes with H |
| 28/07/2014 | W attends changeover Marymead – [Y] refuses to return to W’s care |
| 31/07/2014 | Changeover Marymead – [Y] returns to W’s care |
| 11/08/2014 | H & W discontinue DVO proceedings |
| 15/08/2014 | Changeover Marymead – [X] talks to H for 10 minutes, [Y] goes with H |
| 18/08/2014 | Changeover Marymead – [Y] returns to W’s care |
| 24/08/2014 | Changeover Marymead – [X] refuses, [Y] goes with H |
| 25/08/2014 | Changeover Marymead – [Y] refuses to return to W’s care |
| 28/08/2014 | Changeover Marymead – [Y] returns to W’s care |
| 05/09/2014 | Changeover Marymead – [X] refuses, [Y] goes with H [Y] allegedly discloses W hits [Y] |
| 08/09/2014 | H takes [Y] to Dr R, disclosures against W alleged |
| 08/09/2014 | Changeover Marymead – [Y] refuses to return to W’s care |
| 10/09/2014 | Marymead advises W that H has declined to further use Marymead for changeovers, W alleges H will not return [Y] unless W forces [X] to see H (affid 18/09/2014 para.30) |
| 26/09/2014 | Orders that W and [Y] spend not less than 2 hours together twice [per] week. Orders not implemented. (W comments: despite comments made in open Court and W’s solicitor writing correspondence to H’s solicitor) |
| 27/09/2014 | Dr H makes “Mandatory Report” to CPS |
| 15/10/2014 | Second Section 69ZW Report released |
| 31/10/2014 | W’s solicitor writes to H’s solicitor requesting the children spend time together on [X]’s birthday. H refused to agree. (H comments: Alleged) |
| 04/11/2014 | W speaks to [Y] by telephone during appointment with Dr H |
| 10/11/2014 | W attends [omitted] School and spends time with [Y] in the playground (H comments: alleged –witness suggests otherwise) |
| 19/11/2014 | Orders for telephone time and supervised time between W and [Y] |
| 23/11/2014 | [Y] not made available to spend time with W (H comments: [Y] refused) |
| 24/11/2014 | [Y] spends time with W and [X], incident at return of [Y] to H’s care. (W comments: H assaults mother at changeover. H drags [X] from W’s car) (H comments: Alleged) |
| 01/12/2014 | [Y] not made available to spend time with W (H comments: W refused to give details of supervisor) |
| 02/12/2014 | W’s solicitor writes to H indicating unsuitability of Ms T [Father’s sister] acting as supervisor. |
| 02/12/2014 | [Y] spends time with W and [X], incident in Aldi carpark involving Ms T. Police investigate – no charges laid. (H comments: [Y] not returned to H) |
| 03/12/2014 | H files Contravention Application Re Orders relating to time with [X] |
| 05/12/2014 | [Y] returned to H at 5.00pm at McDonalds |
| 15/12/2014 | Family Report of Ms C released |
| 19/12/2014 | Orders that children live 4 nights with H, 3 nights with W |
| 20/12/2014 | H travels overseas for 2 weeks, [Y] in care of H’s sister (W affid 14/01/2015 para.10) |
| 21/12/2014 | Arrangements for changeover of [Y] not agreed, no changeover takes place. (H comments: Agreed. [Y] refused to go) |
| 22/12/2014 | [Y] comes into the care of W via AFP intervention, remains with W until 05/01/2015. (H comments: [Y] refused. W forced [Y]) |
| 05/01/2015 | [Y] to care of H, spends no subsequent time with W. (H comments: [Y] refused) |
| 06/01/2015 | Ms T seeks DVO against W. (H comments: Granted interim Order) |
| 11/01/2015 | W alleges H assaulted W (affid 14/01/2015 paras.14, 26ff) |
| 14/01/2015 | W seeks DVO against H |
Annotated [Recent] Procedural History
It is apposite to provide the following further, or annotated, recent procedural history for further context.
On 18th September 2014, the Mother filed an Application in a Case seeking, among other things, a “recovery order” (pursuant to s.67U of the Act) for the return of [Y] to her from the Father’s care. The Mother’s Application was supported by two social workers who were from the refuge at which the Mother and children lived. These social workers were never called to give evidence, either for the instant Application or at trial.[7] Suffice to say that their independent accounts supported the Mother’s evidence of her care for both children, and that [X], for whatever reason(s), developed very significant anxiety about seeing, let alone spending time with, Mr Khalid.
[7] See the affidavits of Ms K, (sworn 16th September) filed 18th September 2014, and Ms W, sworn and filed 25th September 2014.
In her affidavit filed on the same date in support of this Application, the Mother deposed that, among other things,
(a)on 5th June 2014, [X] refused to spend time with the Father, while [Y] did so, pursuant to orders made on 4th July 2014;
(b)on 28th July, [Y] refused to return to the Mother’s care, but did return to the Mother on 31st July;
(c)on 15th August, [Y] went into the Father’s care and returned to the Mother on 18th August (a similar dynamic occurred on 24th and 28th August);
(d)on 5th September, the Mother attended the change-over location (Marymead). [Y] went with her Father, while [X] declined to go with Mr Khalid. Upon the scheduled return of [Y] to the Mother on 8th September, [Y] refused to go with her Mother, which then gave rise to the Application for the child’s return or the issue of a recovery order;
(e)the Mother further deposed (para.30) that on 10th September the Father telephoned her to say that he would not return [Y] unless/until [X] was forced to spend time with him. Letters were exchanged between the parties’ lawyers as a result of this impasse;
(f)in this same affidavit (at paras.42 – 52) the Mother deposed that [X] remained resistant to spending time with Mr Khalid. She also confirmed that [Y] had a “good relationship” with her Father and that she seemed happy to spend time with him.
Prior to the hearing of this Application, the Father filed an affidavit on 24th September 2014 in which he deposed that a disclosure had been made by [Y] that her Mother had punched her in the stomach “five times.” The “disclosure” was reported by a case worker at Marymead. The Father took the child to a medical practitioner. Following that examination, which included an x-ray, it was concluded that there was no injury to the child. The Father determined not to return the child to her Mother. The Father said that since 8th September, the child had settled down and had not once mentioned her Mother.
In reply to the Father’s material, the Mother outlined how/why the Father has been/is able to influence [Y] to speak ill of the Mother and make such accusations against her, which she denied. Her denials were, in large measure, supported by the material filed on her behalf by the case workers from the refuge to whom I have earlier referred.
A letter from Dr H (the psychologist with whom [Y] spoke and made a disclosure regarding the Mother [allegedly hitting her]), dated 27th September 2014, was admitted into evidence (Exhibit A). Relevantly it stated:
I deemed the child to be at significant risk of harm due to excessive force and physical punishment if she would be returned to her Mother. The Father is currently acting protectively.
[The child] presented as an engaged child…
When the child was questioned, the Father was asked not to answer question [sic] on behalf of the child and she became engaged. After some clarification she acknowledged that she lives with her Father [and] lives [with] her aunt as well as a cousin who is 4 years old.
The child made disclosures about the Mother pulling her hair. The child made disclosures about the Mother punching her in the stomach a number of times. When asked about how she felt, she state that it hurt, she felt afraid and sad. The Father indicated that the event happened around 8-9 December. Subsequently the child refused to go back to her Mother.
The child also reported that her brother hit her in the face because she changed the channel in the TV. She reported that her brother twisted her hand on many occasions and her Mother tolerated it. She also reported that her Mother locked her and her brother out into the back yard. She reported that she was out there for a while and was convinced it was a deliberate act. She reported that her Mother only allowed her back in after she started kicking from the outside. It was unclear what she kicked…
It is the impression from the initial interview which lasted 50 minutes that the child is genuinely frightened about excessive or unreasonable punishment of a physical nature by her Mother and being physically hurt by her brother. She also reported that she was hit on both cheeks in the face. She reported pain as well as sadness associated with the event.
Following the hearing of the Mother’s Application in a Case, I made orders (inter alia) for material to be produced pursuant to s.69ZW of the Act, for a subpoena to issue to the contact service, Marymead, for the Mother to speak with [Y] by telephone, and that the children spend time together as agreed between the parties. The ICL was requested to speak with the psychologist who spoke with the child following the disclosure to which I have referred. Although not specified in the orders made on 26th September, the child [Y] remained living with the Father.
With the benefit of hindsight, the order requiring the parties to agree regarding the siblings spending time together was another triumph of optimism over reality.
On 14th November, the Mother filed an Amended Response.[8] Summarily stated, it included final orders that sought equal shared parental responsibility for the child [Y], that the child live with her and that she spend each alternate weekend with the Father and one night with him in the “off week.”
[8] For reasons already noted I will not include here any reference to property orders sought in the Amended Response.
On an interim basis the Mother relevantly sought orders for both children to live with her and for the Father to spend time with [Y] and [X] each alternate weekend at a nominated contact centre at times and for time governed by the availability of that centre.
In her affidavit (affirmed 13th November 2014) in support of her Amended Response the Mother outlined the lack of time she had spent with [Y] and the unsuccessful attempts made by her to negotiate such time with the Father. Correspondence with the Father’s solicitor and SMS messages are attached to the Mother’s affidavit.
In this same affidavit (at para.19) the Mother outlined her conversation with the psychologist, Dr H, on 29th October 2014 regarding [Y]’s “disclosure” of the Mother striking the child. Among other things, the Mother said that she protested about the Father being present during such conversation. Later that same day, the Mother said that [Y] left a voice message on her phone saying: “… This is [Y]. I just wanted to say goodnight.”
Then on 4th November, the Mother said that she, Dr H and [Y] had “an amicable and animated conversation” at the end of which [Y] said words to the effect (para.21): “Kisses to you and [X]. Please don’t tell Daddy I spoke with my Mum and kissed her.”
The Mother also confirmed that she visited [Y]’s school (on 10th November 2014) and, with the Principal’s consent, she spoke with [Y], in the course of which the child said to her Mother that her Father would be very angry with her for speaking with her Mother.
The matter next relevantly came before the Court on 19th November, following which orders were made for the Mother to speak with the child twice per week, and for her to spend time with [Y] twice each week for approximately 4 hours on each occasion, with supervision by an agreed third party, and upon completion of that time, the child would return to her Father’s care.[9]
[9] There was also a notation that [X] was to be available to speak with Mr Khalid at changeovers.
On 3rd December, the Father filed an Application in a Case in which he sought orders for the return of [Y] to his care, the child not having been returned by the Mother the previous day in accordance with the orders of 19th November. An order for the return of the child was made, and the child was returned to the Father.
On 5th December the Mother filed a Response to the Father’s Application filed on 3rd December. Among other things, the Mother sought orders for [Y] to live with her and to spend time with the Father as recommended by the family consultant in the earlier s.11F report.
In her supporting affidavit, the Mother recounted her version of events regarding the incident (dated 2nd December) between her and the Father’ sister. I need not detail it here, except to note that on this occasion, the Mother had collected both children from school. Equally so various contentions regarding things said by [X] about Mr Khalid (who he calls “Dad” – as confirmed by the Mother), and of [Y] stating that she wanted to stay with her Mother. The Mother confirmed that since [Y] had been in her care she was happy and did not wish to go to spend time with her Father.
The matter was re-listed for 8th December at which time it was confirmed that inquiries would be made (e.g. by the ICL) of the family consultant as to when the s.62G family report might be available, and that Mr Khalid would provide a transcript of a video and audio recording of the December 2nd incident that involved the Mother and Mr Khalid’s sister. The Father contended that the imbroglio between the Mother and his sister was an assault on the sister, which took place, he said, in front of both children.
The translations of the recordings were provided by Mr Khalid. He said they were “indicative” translations; the Mother disputed the accuracy of them. Having heard and watched these recordings they are all quite distinct. They certainly do not support the clear assertions of the Father against the Mother. That said, the only thing that was clear, and which was confirmed from the oral evidence at trial, was that there was a contest between the Mother and the Father’s sister. The children were present. I prefer the general account of the Father’s sister to that of the Mother. The sister’s account confirmed at least that the Mother’s actions in driving away with the door of the car open could reasonably be taken to be unsafe and which led to Mr Khalid’s sister sustaining injury.
On 15th December, the Court released the family report of Ms C.
On 19th December, I made orders for [Y] to live with the Father four (4) nights, and with the Mother for three (3) nights each week, and for changeovers to take place at a public location and be effected by a third party.
On 8th January 2015, the Mother filed a further Application in a Case which sought extensive orders primarily in relation to property matters.
At the conclusion of the hearing, and following brief oral submissions by the parties and the ICL, I made orders essentially in accordance with the submissions of the ICL, to the general effect of a rotating period of times with both parents with changeovers to be at school. Orders were also made for a timetable for the filing of written submissions in relation to final parenting orders.
In the light of certain failures on the Father’s part to comply with filing directions, the matter was relisted on 17th March 2015, at which time orders were made for the filing of material (e.g. a minute of orders sought by both parties in relation to parenting and property). It was noted in the orders of that date that [further] interim orders would be made on 20th March.
On 20th March 2015, with no appearance by or on behalf of the Father, and with him having filed no written submissions as earlier directed by the Court, the Court relevantly made orders for [Y] to live with the Mother and to spend each alternate weekend with the Father from after school on Friday until before school on Monday.
The Father finally filed written submissions in relation to parenting on 25th March 2015.
As I have earlier noted, very surprisingly, but happily so, I have recently been advised that the orders of 20th March were “holding” (so to speak); at a recent further mention of the matter, the ICL advised the Court that the orders have been operating well and largely without incident!
Expert Evidence
For the purposes of the expert evidence, it is sufficient to note the following firstly from the Report of Ms W, which was prepared pursuant to s.11F of the Act, dated 11th March 2014 (Exhibit B1), and secondly, from the s.62G Report of Ms C, which became Exhibit B2. As already noted, it was released pursuant to orders dated 15th December 2014. The contrast between the two reports, notably in relation to both children and the deterioration in their relationship with Mr Khalid, is alarming.
S.11F Report of Ms W
Briefly stated, the short report of Ms W confirmed the following (references are to paragraph numbers in the Report):
(a)The Mother says of the children’s relationship with their Father that [Y] is very close to her Dad and that [X] looks to him as a role model. [29]
(b)[Y] was demonstrative of clinging with her Father. She was unhappy about leaving him when she was asked by the Family Consultant to accompany her Mother to the playroom. [30]
(c)[Y] was observed to spontaneously and affectionately farewell her Father at this time and at the conclusion of the conference. [31]
(d)[X] also affectionately farewelled his Father when Mr Khalid requested that he say goodbye to him. [32]
(e)He described spending time with his Father during the current arrangement as ‘good’. [38]
(f)He was asked if there was anything about spending time at his Father’s that was not good. He said – ‘he hits me every time I do something wrong.’ He said that sometimes his Father hits him in the face. [39]
(g)[X] said that his parents ‘argue’ and his wish was that they would stop this behaviour. He said that when they have arguments ‘I get scared and hide under my bed.’ [40]
(h)Earlier in her report, Ms W said that both parents acknowledge that the children have seen them argue. [27]
(i)Ms W further noted that among the issues to be addressed were (i) the volatile relationship of the parents’ relationship ‘which both state as being the nature of their relationship since it commenced’ and (ii) the parents’ lack of trust with each other. [44] and [45]
S.62G Report of Ms C
I have already noted the stark contrast between what Ms W observed of the children and their relationship with Mr Khalid, and what Ms C witnessed and recorded. Her observations, and her more detailed assessment and comments, were as follows.[10]
[10] The Mother did not require Ms C for cross-examination; nor, apparently, did the ICL. Without having given any notice to her, the Father suggested on the morning of the trial that he might like to ask her some questions but acknowledged that, at such late notice, such a course might be difficult. In the result, Ms C did not give any oral evidence. See T 5 & 12. I should also note that up until late November 2014, the Father was legally represented. Thereafter he was self-represented. At the commencement of the trial I explained to him, among other things, the process/procedure of the hearing, and provided him with a copy of the Family Law Act1975 with relevant pages in Part VII marked or flagged for him.
At the outset of her Report, Ms C confirmed that in the course of preparing it she had looked at, among other things, material produced in the s.69ZW Reports dated 10th June and 15th October 2014, as well as notes from the “contact centre”, Marymead.
She also noted that the issues to be addressed related to the time the children spent with each parent, the primary care of the children, the Mother’s mental health (this was on the basis that the Father alleged that the Mother had a number of psychotic episodes, and that she had “undiagnosed psychotic issues” [Report at para.15]), and domestic violence. I accept generally that these issues are at the core of the dispute, the only qualification being that, effectively, the orders only relate to [Y], not to [X]. As it happened, there was little contest, and certainly no evidence from anyone, regarding any health issues in relation to either parent.
From Mr Khalid’s account to Ms C, she noted the following, firstly in relation to his “assessment” of the Mother, thus (at para.32) (emphasis added):
Mr Khalid went on to tell me “The mother was not suitable” either as a carer for the children and also that she should not have unsupervised time with them. With a complete disregard for his previous allegations about how violent his wife was, Mr Khalid said that it would now be no problem for him to supervise any time she had with the children. He also suggested he could arrange someone else to supervise. When I challenged the idea that he could supervise, given the problems between them, Mr Khalid said he did not think his wife “could come on to me again when we are divorced”.
Then at paras.37 and 38, Ms C observed:
[37] At interview Mr Khalid presented in a highly anxious state, very keen to make many allegations against his wife. He was very controlling during the interview. When the children refused to see him with me, Mr Khalid was unconcerned by the children’s obvious distress, merely saying this was not because of him because they had not been with him. He was keen to attribute their reluctance to his Wife’s influence and told me how many orders his wife had breached.
[38] Mr Khalid’s test results at Attachment 1 supported my clinical impression of him as someone who failed to take responsibility for any of the problems within his marriage. He appeared reluctant to admit to relatively minor faults or personal problems, and he was blindly uncritical of his own behaviour and insensitive to negative consequences associated with his behaviour. The PAI clinical profile revealed no elevations that should be considered to indicate the presence of clinical psychopathology, although Mr Khalid indicates a certain amount of turmoil in important life areas, sufficient to merit a diagnosis of Adjustment Disorder, Unspecified (DSM IV 309.9) (American Psychiatric Association, 1994).
In relation to the Mother, Ms C said, at para.55:
Ms Khalid said that her husband had first tried to portray her as a bad mother and was now trying to betray [sic – “portray”] her as a murderer. When they got home after the incident [in December 2014 that involved the Father’s sister], Ms Khalid told me that both children were very scared so she texted her husband advised him [sic] that she was not going to return [Y] after what happened because she had not agreed to her sister-in-law being the supervisor. Ms Khalid said she most probably had to return [Y] later in the afternoon on the day of her interviews. Ms Khalid said she really loved her daughter and asked how she could hurt her. She was hoping her lawyer could intervene on her behalf prior to the time of handover.
Further, Ms C noted, at para.57:
Ms Khalid described herself as an at home mother. She said she now had a “beautiful” ACT Housing house for the children and was on Centrelink benefits. Ms Khalid said that she thought part of her husband’s current antagonism towards her was his fear that she would be awarded some of his property. Ms Khalid described herself as not greedy however. During her interview to her credit, Ms Khalid told me several times that she believed the children needed both parents and that she wanted to co-parent with her husband. Even with short notice in the past, Ms Khalid said she had made the children available to her husband and asked why he could not share their daughter’s care with her. Ms Khalid said her husband had now gone so far as to try to charge her with attempted murder after the row with his sister.
In relation to difficulties in the interview process involving [Y], Ms C said, at paras.59 and 60 (emphasis added):
[59] After [Y] refused to separate from her to see me, Ms Khalid told me her daughter was ashamed because she had lied to “the other lady doctor” and falsely told her that her Mother had kicked and punched her. Ms Khalid said [Y] had told her that her Father had told her to tell the doctor this or the police would come and take her.
[60] Not surprisingly given her recent experiences, Ms Khalid’s PAI clinical profile at Attachment 2 is marked by a significant elevation on the Paranoia (PAR) scale, indicating that the content tapped by this scale may reflect a particular area of difficulty for Ms Khalid. Ms Khalid's self-description indicated significant suspiciousness and hostility in her relations with others. This would be compounded by English not being her primary language and by her experiences since coming to Australia. Ms Khalid indicates that she occasionally experiences, or may experience to a mild degree, maladaptive behaviour patterns aimed at controlling anxiety. As expressed during her interview Ms Khalid was experiencing notable stress and turmoil in a number of major life areas. Indeed her current stress was sufficient to merit a diagnosis of Adjustment Disorder, Unspecified (DSM IV 309.9) (American Psychiatric Association, 1994).
In relation to [X], Ms C said, at paras.61, 63, 65, 69 and 70:
[61] [X] told me he was certain that he had to come to talk to me “because of my aunt”. He explained when they saw his sister, his aunt was recording “when she just got into the car” and complained that they had to stay in the mall for four hours which was boring. [X] said that if they went home with their aunt, she would tell his father where they lived. [X] did not want his father to know where they lived because he would do something mean to them such as hitting his mother. [X] said his sister had told him she had seen their father bang their mother’s head on the wall. [X] said when they all lived together he had seen his father hit his mother “a lot of times”. [X] said he had only ever seen his mother trying to defend herself by pushing his father away and had never seen her hit his father herself.
[63] After I explained why I had to interview him and try to ascertain was his wishes were about his living arrangements, [X] told me that he wanted his mother and father to be together again. He asked “If I really have to go to my Dad, can my Mum come?” I explained this would not be usual when parents are separated.
[65] In the event that his parents did not reconcile, [X] told me he wanted to live with his mother and did not really want to see his father. [X] explained “If I see him he speaks something in the language and he called my Mum ‘a witch’”. [X] said his father called his mother this in their language “all the time”. [X] told me he was bilingual.
[69] In conclusion, if his parents did not reconcile, [X] said he wanted himself and his sister to live with their mother.
[70] [X]’s test results at Attachment 3 supported my assessment that he was an anxious child. [X] was involved with both parents although in totally polarised directions. His strongest positive involvement was with his mother and conversely [X] directed only negative items to his father. [X] demonstrated a usual degree of sibling rivalry towards his sister. On a common measure of children’s anxiety, [X] scored in the clinical range. This was concerning. He told me he always had nightmares. He volunteered he slept with his mother and that when his sister was there she did too.
In relation to [Y], Ms C noted the following, at paras.71, 72, 74 and 75 (emphasis added):
[71] [Y] flatly refused to be seen with her father or indeed to separate from her mother to be seen alone by me. She clung crying to her mother in the interview room. Fearfully she told me she could see her father’s shoes outside the interview room, clinging to her mother and looking terrified when I asked her if she would see her father with me.
[72] When I asked [Y] why she did not want to see her father, the little girl responded “I want to stay with Mum”. She began to really cry in earnest repeating “I want to stay with my Mum”. When I explained to [Y] that she might not be able to stay with her mother after the day of interview, she really began to sob that she wanted to be with her mother. Ms Khalid began to quietly cry as well. [Y] asked “Can I stay with my Mum?”
[74] Despite her mother’s encouragement, [Y] flatly refused to talk to me alone and I did not persist. [Y] looked terrified. When I asked her directly about her mother’s behaviour towards her, albeit with her mother there, [Y] said “Mum doesn’t kick me”. When I asked her why she had said that her mother did kick her, [Y] responded “Because my Dad told me to say it”.
[75] I was able to observe both children with their mother. [Y] complained that she was sore when she urinated and her mother said she would take to the doctor later in the day if she could. [Y] commented she wanted to stay with her mother and her father “like a family”. When I again tried to persuade both children to be seen with their father, they flatly refused. [Y] began sobbing and said she wanted to go home. If I brought their father up to the playroom area, [X] told me he would run out of the room. When I did bring Mr Khalid up, both children ran and hid and I ceased trying to see them with their father. After her father left, [Y] asked “Now can I stay with Mummy?” I told her the Judge would have to sort this out and that she might have to go back with her father later in the day.
Ms C’s formal evaluation was in the following terms. It is as well to set it out in full at paras.76 – 87 (emphasis added):
[76] Mr and Ms Khalid have certainly not been able to reach appropriate post-separation arrangements for their children. In the time around their parents’ separating and in the ensuing months these children have had moved between their parents with lengthy separations from each of them. As best I can ascertain [X] has not lived with his father at all since the separation and has refused to see him since July. The Marymead Contact reports detail [X]’s persistent refusals at handovers and his father’s frustration about being interrupted by supervisors when he was asked to speak in English. On occasion, Mr Khalid also expressed frustration with the whole process which did not bode well for the future.
[77] Around the time of initial separation, [Y] was in her father’s [sic: Mother’s?] care. In September this year, Mr Khalid retained his daughter and denied his wife any contact for some months. There had been problems with [Y] going back to her mother at changeovers before this.
[78] The circumstances around [Y] not seeing her mother for three months were precipitated by the report of Dr H to CPS that [Y] “made disclosures about her mother pulling her hair. … The child made disclosures about the mother punching her in the stomach a number of times”. Dr H did not interview Ms Khalid or see [Y] with her mother and it was not clear if she interviewed [Y] alone or with her father. However after the notification CPS concluded “There is a strong indication given the history and previous reports, the child is being coaxed to disclose abuse by the mother” and “It would appear the child may be being coached by her father to say certain statements about her mother while in her care”. CPS deemed the matter a Family Court issue and that “There is no role for CPS involvement”. They noted that the “Reports received by CPS all pertain to the children being abused and the violence between the parents”.
[79] Regardless of the perpetrator, these children have undoubtedly been subjected to both verbal and physical domestic violence and just a few days before my assessment interviews to a heated row between their mother and aunt with their father being involved by phone. Children subjected to such behaviours are likely to be in an aroused, agitated, anxious state and [Y]’s reported behaviour at school around the time of changeovers exemplifies this. Given her history, it would not be surprising that at school [Y] would have been alarmed, confused and anxious in the presence of both of her parents.
[80] Mr Khalid presented as highly agitated and very anxious to get his point of view across. He expressed no concerns about how his children were managing other than in the context of denigrating his wife and no insight into the effects of this dispute on them. I was concerned that Mr Khalid wanted to arrange for the police to pick up his daughter from her mother, despite [Y]’s obvious resistance to even seeing him at the Court.
[81] Unfortunately, Mr Khalid did not have a good word to say about his wife as a person or as a parent. He based his application for primary care on her having “psychotic issues” although these were undiagnosed. I could find no evidence in Ms Khalid’s presentation, history or test results to support her husband’s allegations. In his assertions and allegations, Mr Khalid paid no attention to the impact of his and his wife’s actions on their children. In asserting she should go to prison, Mr Khalid paid no heed to the deleterious effect this would have on their children.
[82] Ms Khalid on the other hand presented as distressed and anxious. She wanted to co-parent with her husband and had even contemplated reconciliation for the children’s sake. Ms Khalid said she would never deny her husband seeing the children. Ms Khalid said she believed children needed both parents. The Court must of course assess the veracity of the claims against her. It was notable however that there were no notifications about Ms Khalid’s care or behaviour towards the children from the refuge where she resided with the children for months. It is also very likely that Ms Khalid has been able to be a more relaxed parent since she has not had to deal with the tensions engendered by her relationship with her husband when they lived together.
[83] In my opinion from a purely practical basis, given Ms Khalid was not working and her husband was, Ms Khalid appeared best placed to be primary carer. Mr Khalid has less time than his wife for the children. He is working full-time and advised he already has a new partner and although this woman’s role was unclear, he will no doubt have to devote some time to pursuing this relationship.
[84] Although both children wanted their parents to reconcile, both also told me quite definitely that they wanted to live with their mother in the event no reconciliation took place. [X] has not been seeing his father at all, said he does not want to and refused to do so on the day of interview. His test results demonstrated his strong antipathy to his father. [Y] also refused to be seen with her father and clung to her mother, begging to be allowed to stay with her on the day of interview.
[85] If any concerns about Ms Khalid’s parenting are substantiated, in my opinion, she might well be a better parent when this dispute is resolved and the tensions of dealing with her husband reduced. A woman called [Ms L] was quoted in the CPS material as saying that “since the mother has been at the refuge there have been no concerns regarding her parenting and care of the children. [Ms L] described her as a very gentle person”. There did not appear to be any strong reasons to me to take the children from this unfortunate woman or no basis to conclude her husband and sister-in-law were likely to be better parents was apparent to me.
[86] There was a lot of reference by both the parties and the children in this matter to hitting, kicking and calling the police. Both parties need to be formally advised such approaches are deemed unacceptable disciplinary methods in Australia and both would benefit from attending parenting and co-parenting after separation courses as part of their assimilation into Australian culture.
[87] Despite Ms Khalid’s hopes, in my opinion, her husband demonstrates little ability to co-parent given his extreme disparagement of and hostility towards her. This is unfortunate given both parties want a strong role in the children’s up-bringing.
In the light of her evaluation, Ms C made the following, very brief recommendations, at paras.88 and 89:
[88] Both children should primarily reside with their mother and ideally, if [X] will go, spend time with their father for three nights every second weekend. Changeovers should be at Marymead.
[89] Both parties should attend parenting and co-parenting after separation courses.
Respectfully, not only because there was no challenge by anyone to
Ms C’s report in any relevant respect, but also because of my own evaluation of the parties over the long history of the matter (as well as during the trial), I accept her assessments and recommendations.
Oral Evidence
The evidence of the parties was difficult to deal with during the trial (as I have earlier noted) primarily because it did nothing to illuminate any relevant issue before the Court, other than to confirm that (a) the parties have the greatest difficulty in communicating (and relating generally), and (b) the relationship between the parties has been strained for quite some time. A consequence of these problems is that both children have been embroiled in a contest between their parents also for some time, and the stresses and strains are obviously showing, and are being “played out”, so to speak, in different ways, such as the various specific contests between the parents and their respective supporters that have involved the children (e.g. the incident between the Mother and the Father’s sister in early December 2014).[11]
[11] Among other things in relation to this incident, see the ACT Police Report (case 5717611) 4th December 2014 (Exhibit D), and the Domestic Violence Order records for Ms T (the paternal aunt) from the ACT Magistrates Court no.15/016 (Exhibit F).
As a further general observation, in my view, the evidence of the parties was such that it was so coloured by the trauma and distrust of the last six or so months that its reliability should very much be questioned. Put another way, the discord between the parties was of such a kind that the Court could not (and should not) rely upon the evidence of either party. True it is that both parents love the children; but that is almost as far as the Court could reasonably go (and even then, with some hesitation) in the assessment of their relatively brief oral evidence.
I should also mention one further specific matter from the oral evidence. It concerns the Father’s new partner, soon to be Wife: unfortunately, no details concerning his new partner were set out in any of the Father’s affidavit material. This led the Mother’s Counsel to submit, in accordance with the authority of Jones v Dunkel, that her evidence would not have assisted the Father.[12] While strictly speaking this inference may properly or reasonably be drawn, in the context of the whole of the evidence, it is very difficult to see what the Father’s soon-to-be spouse would add that would assist the Court or otherwise how it might materially change the orders that the Court considers to be in the child’s best interests, pursuant to s.60CA of the Act.
[12] Jones v Dunkel (1959) 101 CLR 298.
In the Father’s oral evidence he confirmed that he had a new partner. Initially he refused to advise the Court of her name, inquiring into the relevance of this fact. After explaining it to him, such as that she would likely be (and had been) involved or engaged with one or both children, he told the Court of her name and some basic details. These included that he had met Ms E “via referrals” because she was the dentist of a friend in downtown [omitted]. She was now living with the Father (in the ACT), and they had gone through what he called “a small ceremony of engagement.”[13] He was surprisingly unenlightening about, for example, whether he would be formally sponsoring her visa as his spouse at some time in the future. He simply said that he was not prepared for questions regarding Ms E’s visa details; he only knew that currently she was in Australia on a tourist visa.[14]
[13] See T 42 – 53.
[14] T 46.
The Father also said that the Mother knew of Ms E living in his household, and therefore that she came in regular contact at least with [Y], even sometimes picking her up from school. He said that the Mother was aware of Ms E’s presence in living with the Father as from September 2014.[15]
[15] T 45.
In the Mother’s evidence, she confirmed that she became aware of
Ms E’s relationship with the Father in August or September 2014. Yet, as I have noted, apart from the Father mentioning his partner to Ms C, no one had advised the Court of this not insignificant fact.
The only other matter to note, this time from the Mother’s evidence, was that she said that she and the Father’s sister (who had been facilitating some changeovers – but not since the incident in early December 2014 that involved both ladies) did not get along at all. Further, the Mother said that she feared that the Father and his sister wanted to exclude her from [Y]’s life.
Again, both of these aspects from the Mother’s relatively brief evidence highlighted further the quite broken down relationship between the parents, and the distrustful relationship between the Mother and the Father’s sister.
In relation to the evidence generally and the range of accusations made by each party against the other, the ICL submitted (at paras.20 & 21 of his written submissions, filed 14th April 2015):
[20] The Court is faced with an Herculean task in attempting to determine the truth in respect of the various allegations. The allegations have become completely entangled in a large number of varied allegations and counter allegations. Objective or independent evidence as to the facts in respect of any particular allegation is significantly lacking.
[21] The safest course for the Court to take is to assess that there is some risk that [Y] may be subject to some abuse in the care of either parent.
Respectfully, I agree with and accept these submissions. I also agree with and accept the following more detailed submission by the ICL in relation to the evidence (at para.55) (emphasis added):
In analysing the evidence of both parties both in their affidavits and under cross examination, the Court will be left wondering where the truth lies on numerous issues. Both parties at times have held to seemingly improbable versions of events. Neither has shown any capacity to admit fault or accept blame. There appears at times to be a tendency to hold to an improbable account of events rather than to admit to conduct that could otherwise be criticised. Instances of this conduct include where possible breaches of domestic violence orders have occurred. The evidence about or explaining what occurred appeared to be designed to avoid the conclusion that a breach had occurred. This appears to have a ‘cultural’ aspect to how both parents present themselves. Both parents appear to be convinced that they are giving accurate accounts of the event(s) in question. This leaves the Court dealing with much evidence that is unhelpful and which makes it difficult to make any meaningful determination on facts. It is possible that either or both parents were being intentionally untruthful in their evidence. It seems more likely that they both understand how the Court deals with factual analysis in a different way to that which the Court more commonly encounters. I [sic] any event, the Court will find it difficult to find either parent has been a reliable historian of marital conflicts.
It is also apposite to note the further submission by the ICL in relation to the regular non-compliance with orders (at paras.56 & 57) (emphasis added):
[56] There has been significant non-compliance with Orders by both parties. This conduct is in part associated with the issue dealt with in the preceding paragraph. There has been a significant attempt to hide behind the excuse or reason for conduct that either or both children have been non-compliant. The father in particular appears to have developed this approach to non-compliance. He appears to have first learnt that non-compliance by a child was effective in achieving an outcome different to that required by Orders when he came across the policy of Marymead not to force a child to go to a parent against the child’s wishes. This occurred when time between the Father and [X] was being attempted and [X] was non-compliant. Very quickly the Father used the same approach to the failure to return [Y] to the Mother, contrary to Orders. He has continued with that approach in numerous circumstances subsequently.
[57] Both parents can be criticised for their non-compliance with Orders. The Court has no reason for optimism about future compliance by either. The Orders that are now to be made should minimise the risk of this issue again arising where possible.
I agree with and accept these submissions also.
In the light of the comments made and submissions accepted, and more generally because the oral evidence was so unhelpful, and in the light of the other evidence provided to the Court, particularly by the family consultants, I do not propose to traverse the evidence of the parties given at the trial any further. Equally so I consider it unnecessary to address the very limited evidence of the Father’s sister in relation to the discrete issue regarding the detail of the contest between she and the Mother on 4th December 2014. As I have already noted, there is no disagreement that the Mother and the Father’s sister have a very difficult relationship. Rather, after briefly pausing to note [again] very brief reasons for the procedural orders in relation to property and further interim parenting orders, I move to outline the submissions made by the parties and the ICL before considering the statutory scaffold set out in Part VII of the Act.
Procedural and Interim Orders of 20th March 2015
I have already noted that, in the light of very brief submissions made at the end of the trial, I made interim parenting orders pending the making of final orders and delivering reasons for them. At the same time I made direction for the filing of submissions in relation to the final parenting orders, and in relation to certain property orders.[16] I have earlier noted that, in general terms, I accepted the submissions by the ICL in relation to the interim parenting orders at the conclusion of the trial. I did so because, pending the Court’s reasons and final orders, in my view it was imperative to cause the least disruption to the then existing arrangements, as [Y] was spending regular time with her Father. That arrangement, in all the circumstances, was (in my view) in her best interests.
[16] See the discussion at T 241 – 247.
I have also noted earlier in these reasons that in the light of ongoing failure by the Father to comply with orders, primarily in relation to disclosure/discovery of documents for the property proceedings, and because he had not complied with the time-table for the filing of submissions in relation to parenting orders sought, the matter was re-listed on 17th March. At that time I made further orders for the filing of minutes of orders sought in relation to parenting as well as property. The parties were put on notice that it was the Court’s intention to make further orders on 20th March 2015. The Father was present in Court on 17th March when these further procedural orders were made.
On 20th March, the Court made orders in relation to property as well as parenting as sought by the Mother. This was in circumstances where the Father had not filed any submissions in relation to either aspect of the proceeding – although the Father had filed (very late on the night of 18th March; it was due by close of business) [only] a Minute of Orders Sought, seeking that both children live with him and spend supervised time with the Mother. He had not complied with the orders made at the conclusion of the trial; he had not complied with orders made on 17th March. He did not attend Court on 20th March when further orders were made in relation to both aspects of the matter.
I have already noted that the Father filed submissions only on 25th March 2015.
To state the obvious: the orders made on 20th March followed non-compliance by the Father with earlier orders (procedural and otherwise), and in the absence of his attendance at Court on 20th March notwithstanding that he was in Court on 17th March. The orders of 17th March note the Father’s agreement (not for the first time) to provide documentation to the Mother’s solicitor by way of financial disclosure. The Father’s lack of engagement, and his clear and significant failure to comply with orders regarding the provision of submissions, left the Court with no other option but to make the orders as sought by the Mother.
Also to state the obvious: the orders of 20th March in relation to parenting were interim orders, and are/will be superseded by the final orders that the Court makes today, which are founded upon these reasons.
The Father’s Submissions
The first nineteen [brief] paragraphs of the Father’s submissions all traverse the Father’s contentions about the lies and opportunism of the Mother in entering into a marriage with him. For example, he claimed that the Mother lied to get into the relationship (which, he said ‘happens quite often from poor third world countries like India’) and further that the area from which the Mother came “is very backdated and there is hardly anyone gets opportunity to travel to Western world, let alone living [sic].” He said that the Mother used her sister’s photographs “to lure me to this relationship.” He also said that as soon as she received her Australian passport “she started the atrocity with me and children. Because she got what she wanted.”
The Father said that he had been forced to reconcile with the Mother by pressure from friends in the Muslim community in Canberra.
In paragraphs 20 - 28 of his submissions, the Father set out a range of matters which he said were lies the Mother told in the course of her evidence during the trial. For reasons already given I do not propose going through his contentions regarding the Mother’s evidence. In any event, the Father’s submissions proceeded simply as assertions or declarations. No evidence was referred to or relied upon for such bald statements.
In paragraphs 29 - 35 of his submissions, the Father, again very briefly, set out what he said were matters that establish the Mother’s acts of violence towards the children and also towards others. He also says in this same part of his submissions that there is no evidence of him being violent as alleged by the Mother.
Paragraphs 37 - 39 set out his objections to Ms C’s report which he said was ‘highly flawed.’ This is primarily because of him not being seen by Ms C with [Y] in the course of her interviews with the parties. He maintained that because of the flaws he had identified (again: he had simply or merely asserted them) a new report should be prepared. I should note in particular that Ms C set out (which I have earlier recorded) how/why [Y] refused to be seen with her Father during the course of interviews with the family consultant.
Paragraphs 40 - 43 set out the Father’s contentions regarding the Mother’s [alleged] coaching of the children particularly in relation to [X]. The Father says in these brief submissions that he has never coached either of the children.
Paragraphs 45 - 52 set out, again in very brief form and always in the nature of bald assertions, his good relationship with both children but again primarily with a view to establishing that he has a good and close relationship with [X]. He also says that the Mother’s affidavit material confirms that he has a ‘good strong loving relationship with [Y].’ This may have been the case once, as Ms W recorded in her short s.11F report; it is no longer the case, as Ms C outlined at some length in her s.62G report. How and why there has been such a decline in the relationship was not relevantly explained by the family consultant.
In paragraphs 54 - 61 the Father made a range of allegations regarding the Mother’s state of health which may, in certain circumstances, impact negatively on her capacity to care for the children. I have already noted that there was no relevant medical evidence before the Court that could, in my view, found the kind of submissions made by the Father here.
In paragraphs 62 - 69 the Father set out what he says should be the Orders made by the Court which includes equal shared parental responsibility for both children, and that I should place particular weight on the allegations of violence by the Mother towards the children which would lead (in the Father’s view) with the children living ‘peacefully’ with him, his sister and her son, and his fiancé,
Ms E. He also said that the children should have regular contact with the Mother but does not specify the frequency or any other detail in this regard.
Paragraphs 70 - 77 again generally set out why the children should live with him, principally because he says he can provide a family environment that is “fun, interesting and children learn more in a social atmosphere.”
In the conclusion to his submissions (paras.78 - 82), the Father focussed on the Mother’s negativity towards the Father and that her goal is to punish him by removing [Y] and [X] from him.
I should note here, and not for the first time, that the Father’s submissions were unqualifiedly critical of the Mother. Whether intentional or not, quite a number of his submissions (e.g. in relation to the Mother coming from a “poor third world country” and that the area from which she came was very backward) were offensive and denigrating towards to her and her country of origin. It reflected poorly on him.
Likewise, and giving every allowance for a self-represented litigant, his submissions were lacking in any relevant insight regarding his own conduct towards the Mother, and the likely impact on the children if the Court were minded to make orders as sought by him.
The Mother’s Submissions
In general terms the Mother agreed with and supported the Orders sought by the ICL.
She contended further that the presumption for equal shared parental responsibility on s.61DA was rebutted because of the violence directed towards the Mother and [X] (and witnessed by the children), the inability of the parties to communicate in a way that promotes the welfare and best interests of the children and, therefore, it was not and is not in the children’s best interests for such an Order to be made. I accept this submission.
The Mother contended that it was not disputed by either party that [Y] has a good relationship with the Father and equally so with the Mother. It was further submitted that the relationship between the Father and [X] is and remains dysfunctional.
The Mother also submitted that if the children, but [Y] in particular, was to be Ordered to live with the Father, there would be a significant risk of the Mother’s relationship with her daughter being ‘irreparably damaged’.
The Mother denied ever having been violent towards either of the children, but acknowledged that both parties have used corporal punishment with the children.
Unsurprisingly, the Mother placed significant emphasis on the lack of evidence from the Father’s new partner and what impact the Father’s more recent relationship with Ms E might have, in terms of availability of care and the like in the Father’s home.
The Mother contended amongst other things that the Father has little or no capacity properly to parent [Y]. For example, the Mother submitted that the Father’s failure to ensure [Y] spends time with her Mother and [X] was a direct result of his doing or within his power to keep the child away from them until he gets what he wants, irrespective of how this has been impacting upon the child. On the other hand, the Mother says that the history of the relationship confirms that, notwithstanding the parenting difficulties, she has promoted, and always will do so, [Y]’s relationship with her Father.
The Mother also submitted, in large measure relying upon the family report as the only independent evidence before the Court that the Father is incapable of comprehending the obligations he has to provide for the children and to promote the relationship with the Mother. It was also submitted that the Father has no insight as to how his adverse behaviour impacts on the children.
In short, the Mother submitted that whatever difficulties have been encountered in the past (a) she has been the children’s primary carer, (b) she will promote the children’s (and [Y]’s in particular) relationship with the Father, and that to avoid contact between the parents as much as possible, (c) all changeovers should be at the children’s school.
The ICL’s Submissions
I will not set out in detail the ICL’s submissions because, in very large measure, I accept and agree with them as they deal with the prescriptions of the legislative scaffold or pathway of Part VII of the Act. I will set them out therefore in that section, which follows. It is sufficient for current purposes simply to note the following by way of preliminary observations with which I agree.
At paras.2 - 4, the ICL stated:
[2] It is relevant to note that the applications substantially deal with the parenting arrangements for the child of the parents, [Y], who is now aged 5 years. The trial did not in any substantial way canvas evidence regarding the arrangements for the Mother’s older child [X], although the arrangements for [X] will be a significant factor in the determination the Court is to make regarding [Y].
[3] Throughout the proceedings the Mother has been represented, firstly by Legal Aid ACT and subsequently by Infinity Legal. At the hearing the Mother also had the benefit of being represented by Ms Haughton of Counsel.
[4] Although the Father was initially represented, he was self representing for a substantial number of appearances before the Court and at the trial. Your Honour has had numerous opportunities to hear directly from the Father in appearances prior to the trial and then at the trial as a witness and as a self represented party. It is inevitable that the observations of the Father in the appearances prior to the trial will be relevant in the assessment of the Father formed by Your Honour. Respectfully it is submitted that Your Honour will need to carefully indicate where evidence at the trial has lead [sic] Your Honour to any particular finding that is made (most particularly regarding the Father) as against other aspects of the conduct of both parties that has occurred outside of the trial. (There has been conduct both before and after the trial that Your Honour may well find relevant to making findings … about the conduct of either or both of the parties).
Then in relation to s.60CC(2)(a), the ICL stated (as much by way of further preliminary observation as anything else) (at para.12):
[12] The Court is to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. There is no clear evidence to lead the Court to conclude that [Y] would not benefit from having a meaningful relationship with both of her parents. The Mother has been [Y]’s primary carer and [Y] will undeniably benefit from continuing a meaningful relationship with her primary carer. It has no doubt been detrimental to [Y] to be denied time with the Mother for significant periods of time since separation. This has occurred on several occasions when the Father has failed to make [Y] available to the Mother, on occasion contrary to Orders of the Court…
In relation to s.60CC(2)(b), the ICL said, at paras.18 – 21:
[18] There was family violence during the relationship and particularly around incidents when the relationship was breaking down. Orders will need to be crafted to minimise the opportunity for the parties to directly engage with each other, particularly at changeovers. The risk of exposure to further family violence can be reduced, if not excluded (as a risk).
[19] Both parties allege abuse by the other in respect of either or both [Y] and [X]. The Father particularly raises allegations that the Mother hits [Y]. He withheld [Y] during the proceedings on the basis of that abuse. In addition he an alleged unwillingness that [Y] was unwilling to spend time with the Mother out of fear of the Mother and alleged abusive behaviour.
[20] The Court is faced with an Herculean task in attempting to determine the truth in respect of the various allegations. The allegations have become completely entangled in a large number of varied allegations and counter allegations. Objective or independent evidence as to the facts in respect of any particular allegation is significantly lacking.
[21] The safest course for the Court to take is to assess that there is some risk that [Y] may be subject to some abuse in the care of either parent.
Then at para.48 of his submissions, the ICL observed the lamentable fact that:
Unfortunately [Y] has become an object over which the parents are fighting rather than a precious child who needs the best of both her parents to develop and thrive.
Although already noted, it is as well to record again the ICL’s comments on the evidence, and the history of both parties and their non-compliance with orders as follows, at paras.55 - 57:
[55] In analysing the evidence of both parties both in their affidavits and under cross examination, the Court will be left wondering where the truth lies on numerous issues. Both parties at times have held to seemingly improbable versions of events. Neither has shown any capacity to admit fault or accept blame. There appears at times to be a tendency to hold to an improbable account of events rather than to admit to conduct that could otherwise be criticised. Instances of this conduct include where possible breaches of domestic violence orders have occurred. The evidence about or explaining what occurred appeared to be designed to avoid the conclusion that a breach had occurred. This appears to have a ‘cultural’ aspect to how both parents present themselves. Both parents appear to be convinced that they are giving accurate accounts of the event(s) in question. This leaves the Court dealing with much evidence that is unhelpful and which makes it difficult to make any meaningful determination on facts. It is possible that either or both parents were being intentionally untruthful in their evidence. It seems more likely that they both understand how the Court deals with factual analysis in a different way to that which the Court more commonly encounters. I [sic] any event, the Court will find it difficult to find either parent has been a reliable historian of marital conflicts.
[56] There has been significant non-compliance with Orders by both parties. This conduct is in part associated with the issue dealt with in the preceding paragraph. There has been a significant attempt to hide behind the excuse or reason for conduct that either or both children have been non-compliant. The father in particular appears to have developed this approach to non-compliance. He appears to have first learnt that non-compliance by a child was effective in achieving an outcome different to that required by Orders when he came across the policy of Marymead not to force a child to go to a parent against the child’s wishes. This occurred when time between the Father and [X] was being attempted and [X] was non-compliant. Very quickly the Father used the same approach to the failure to return [Y] to the Mother, contrary to Orders. He has continued with that approach in numerous circumstances subsequently.
[57] Both parents can be criticised for their non-compliance with Orders. The Court has no reason for optimism about future compliance by either. The Orders that are now to be made should minimise the risk of this issue again arising where possible.
Respectfully, I agree with and accept these submissions in particular of the ICL, as I do more generally.
Consideration & Resolution
I turn finally to the ‘structured exercise of the Court’s exercise of its discretion’, to para-phrase the words of Boland J in Morgan v Miles.[17] In undertaking this discussion of relevantly prescribed statutory considerations from Part VII of the Act, I am also conscious of the summary of principle set out by Brown J in Mazorski v Albright, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to ss.60CC(2A) and 60CC(3)(c).[18] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[17] Morgan v Miles (2008) 38 Fam LR 275 at [55], [74], [79] and [81].
[18] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[19]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[19] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in Mulvany v Lane (2009) 41 Fam LR 418 at [90], and McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Without necessarily referring to each sub-paragraph, unless otherwise specified I should be taken to follow sequentially the order of considerations set out in s.60CC(3).[20] As I have already noted, I accept and adopt as the Court’s own views the submissions from the ICL which are relevantly set out below.
[20] Generally, regarding the order of addressing relevant “considerations” under the Act, see the recent Full Court discussion in SCVG & KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 at [71] ff.
In relation to sub-paragraph (a), the ICL said (at para.26):
Other than as can be found in Ms C’s report, the evidence as to [Y]’s wishes cannot be a significant element in this matter. [Y] is still of a young age. The parental dispute is such that [Y]’s wishes if any cannot have been formed in an environment where any weight can be placed on them. [Y] has been denied an environment in which she can flourish and she has probably done little more than develop survival strategies since the parents separated and embarked on the battle for care of [Y].
I should also note here, to the degree apposite, that [X] clearly expressed his views to the family consultant, which I have recorded earlier in these reasons. As difficult as it is and must be for Mr Khalid to accept, at the present time, [X] does not wish to see or to spend time with him. One might hope that once this litigation is over and the healing balm of time is applied, and hopefully some common sense prevails, [X] will settle down and resume spending some time with his step Father. It is certainly unfortunate that the family consultant did not explore with him why he was now so hostile to Mr Khalid; the Court may only, at best, infer, that the hostilities between the parents, and the dislocation of [X]’s time with [Y], have both played some part in the now discordant relationship. And should it need to be noted formally, in my view, it is imperative that the siblings not be separated.
At paras.28 – 33, the ICL stated (emphasis added):
[28] The Court has the benefit of Ms C’s observations of [Y] interacting with both parents. Ms C indicates there are concerns about [Y]’s relationship with both parents, particularly arising out of [Y]’s exposure to domestic violence and disputes involving her parents and other family members.
[29] There is no doubt that [Y] has a relationship with both parents. The Court should attempt to find solutions for [Y] that enable her to maintain her relationship with the parent with whom she does not live following these proceedings.
[30] [Y]’s relationship with [X] is important, and in context of the parental dispute it has more importance than might otherwise be the case. [Y] and [X] have been significantly separated during the course of the proceedings. This is most unfortunate, as they probably need each other even more when the parents are in such high level conflict.
[31] It is the view of the ICL and his strong recommendation that the Orders the Court makes facilitate [X] and [Y] living predominantly in the one household.
[32] Ms C states (paragraph 83) that the Mother is best placed to be primary carer. That conclusion arises at least from consideration of purely practical circumstances, one of which (and probably the most important of which) is that [X] lives with the Mother.
[33] It should be noted that [X] now has little or no contact and involvement with the Father. To the extent that [X]’s relationships with the parents are concerned, the relationship with the Mother is clearly the stronger and more important.
In relation to sub-paragraph (c), the ICL said (emphasis added):
The parenting of both parents has been exercising [sic] in such an atmosphere of high conflict for so long that the Court will not be able to make any useful conclusions about the manner in which either parent has involved themselves in decision making for [Y]. The time [Y] spends with either parent has been a major battlefront in this matter.
Because of what is set out elsewhere in these reasons, I need only note summarily my concern about the Father’s denigration of the Mother in his written submissions. He is dismissive of her role in the children’s lives. His failure to comply with Court orders in the provision of parenting submissions also has not assisted his cause; it has also made the Court’s task regularly that much more difficult.
Regarding sub-paragraph (ca), the ICL said (at para.35):
The Court will likewise have difficulty assessing the manner in which either parent has fulfilled their obligations to maintain [Y]. The circumstances of her care have been too unsettled, variable and contentious for any normality to be achieved.
Relevantly regarding sub-paragraph (d), at para.37, the ICL said:
The Father’s proposal involves change that is likely to be adverse to [Y]’s best interests as he proposes changing [Y]’s residence from that of her long term primary carer, being the Mother. It also separates her from [X].
Issues of distance of travel (and the like) do not arise in this case given that both parties reside in Canberra (or the Canberra region).
In relation to sub-paragraph (f), the ICL said, at paras.40 – 44 (emphasis added):
[40] Both parents have shown a lack of insight into the emotional and subsequent developmental impacts on [Y] that there [sic] ongoing conflict will have caused.
[41] The focus on that conflict in the evidence presented to the Court has tended to overwhelm exploration of the actual parenting capacities of both parents.
[42] There is some basis for concern about the Mother arising from the allegations that she uses forms of physical discipline.
[43] The level of parental conflict will make it difficult for the Court to know how to best address this concern. Absent this issue there appears to be no significant concern about the capacity of the Mother in day to day parenting.
[44] There is a strong concern on the part of the ICL that the Father’s parenting style reflects a conservative cultural understanding of the role of females. The Father’s views are likely to be more restrictive than those of the broader society in which [Y] will be educated, make friendships and grow into adulthood. There is concern that the Father’s views will be confusing and restrictive for [Y].
[45] It is also of concern to the ICL that the Father saw fit to keep [Y] from school after the hearing on the basis that she was non-compliant, alleging that [Y] did not want to see the mother in accordance with the Orders made at the end of the trail [sic] about her spending time. This situation caused the matter to return to Court and for further orders to be made reducing the Father’s time with [Y]. It appears that the Father has been prepared to interfere with the child’s education (and her opportunity to be in an environment relatively free from the parental conflict that otherwise dominates) in a manner that casts doubt on his commitment to parenting [Y] appropriately, as against his determination to be the victor in the parental war.
The earlier comments in relation to sub-paragraph (c) apply equally here also.
Regarding sub-paragraph (g), the ICL properly notes:
The Father is from Bangladesh and the Mother is from India. Both parents are of the Muslim faith. There is no evidence that either parent is to be preferred in respect of how they will assist [Y] to understand her cultural heritage, subject to the comments in relation to Section 60CC (3) (f) considerations above.
I need only note the following comments from the ICL’s submissions (at pars.49 – 53) in relation to sub-paragraphs (j), (k) and (l) (having already referred to sub-paragraph (i) earlier in these reasons) (emphasis added):
[49] Issues of family violence have been significantly canvassed in the preceding submissions. The Court will have difficulty disentangling these issues in a meaningful way from the bigger picture of ongoing high level parental conflict.
[50] Clearly it would be preferable for there to be no further proceedings. The Court has little ability to craft Orders that will make that possibility any less likely.
[51] Orders that require the parents to agree or even consult are likely to lead to further proceedings. These parents should be assumed to be incapable of putting their dispute behind them and finding a way to co-operatively parent.
[52] Orders that give the Father ‘control’ of the care of [Y] are likely to see him seek to cut out the Mother from any meaningful role in [Y]’s life. That may lead the Mother to bring further proceedings.
[53] It is possible that orders that [Y] live with the mother will see the Father abandon his quest to win the parental war, but that would likely come at the cost of him also abandoning his relationship with [Y].
There are no other matters that the Court can or should properly consider in relation to making parenting orders.
Although previously noted, I record (not for the first time) that I accept these submissions of the ICL.
In relation to parental responsibility, the ICL submitted, at para.59. Again I accept the ICL’s submissions, thus:
The Court cannot find the sharing of parental responsibility or of care for [Y] to be in [Y]’s best interests. The parents have litigated in a manner that results in a ‘winner’ and a ‘loser’ in the war between them. Regrettably this leave [sic] [Y] as a loser on either outcome in any event. She will inevitably have a less substantial relationship with one of her parents.
In addition to the above, I note again the pervasive negativity of the Father towards the Mother and an alarming level of denigration of her in his late-filed written submissions. Those submissions also reveal a concerning lack of insight on the Father’s part with respect to his parenting responsibilities towards both children. They also reveal (as the family consultant also observed) a concerning inability to take any responsibility for his actions, particularly in relation to parenting. All blame is laid at the feet of the Mother.
In the light of the evidence, and the submissions which I have accepted, there can only be an order for sole parental responsibility, which will be in favour of the Mother. As such, the provisions of s.65DAA have no relevance or application in the present matter.
Also in the light of the evidence and the submissions which I have accepted, the following orders sought by the ICL should be made. In my view, they are in [Y]’s best interests. To the degree relevant and apposite, in my view, they are likewise in [X]’s best interests. The Court’s orders should be and are as follows:[21]
[21] No formal provision was made by the ICL for any school holiday orders (for either child). In my view, subject to any other agreement in writing between the parties and approved by the ICL, for my part the school holidays should be shared equally between the parties in relation to [Y], and in accordance with [X]’s wishes (the Mother should encourage [X] to resume spending some time with the Father, even on a graduated basis).
(1) The Mother have sole parental responsibility for the children [X] born [omitted] 2005 and [Y] born [omitted] 2009.
(2) The children live with the Mother.
(3) There be no orders regarding time between [X] and the Father, save that the Mother should encourage [X] to spend time with the Father.
(4) For term 3 2015 [Y] spend time with the Father from after school Wednesday to before school Thursday each week, with changeovers to occur at [Y]’s school.
(5) From Term 4 2015 [Y] spend time with the Father from after school Friday to before school Monday (and continuing until before school Tuesday if the Monday is a public holiday) on alternate weekends, commencing on the second Friday of each school term, with changeovers to occur at [Y]’s school.
(6) If the Father fails to send [Y] to school on a day when [Y] is due to return to the Mother’s care changeovers take place at [Y]’s school at the end of the school day in any event, and the Father’s time with [Y] is suspended unless and until the Father provides a medical certificate in respect of [Y]’s absence from school.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 15 June 2015
The Mother was formerly represented by the Legal Aid Office of the ACT. For the trial she was represented by a private law firm who retained experienced Counsel. In the course of the trial, much to everyone’s surprise, not least to the Mother’s Counsel (and no less so the Court), it was revealed that the terms of the legal aid grant to the Mother would ensure that her solicitors would be paid but not her Counsel. See the discussion at T 217 – 218. It was clear from this discussion that Counsel was unaware of such an arrangement; she was therefore operating on a pro bono basis, while her instructors were getting paid, and they briefed her without disclosing such matters. I indicated that I hoped that something might be done about this inappropriate (in my view) situation. The issue of non-payment of Counsel, and Counsel not being told by her instructors that they were getting paid and she was not, was re-visited at the end of the hearing. See T 246. Typically, in taking this brief on a pro bono basis Counsel acted honourably and graciously; by not being completely truthful with Counsel about payment, in my view, her instructors acted egregiously and dishonourably.
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