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…
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- Khalid and Khalid [2015] FCCA 1597
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- [2015] FCCA 1597
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CaseChat Overview and Summary
The court was required to determine the primary caregiver for the children, where they would live, and the extent of time each child would spend with each parent. The court also needed to consider the impact of the parents' acrimonious relationship and allegations of domestic violence on the children's welfare.
Judge Neville's reasoning was heavily influenced by a formal evaluation of the family. The evaluation highlighted the parents' inability to reach appropriate post-separation arrangements and the children's exposure to domestic violence. The court found that the father, Mr Khalid, presented as agitated and anxious, with no apparent insight into the effects of the dispute on the children, and made unsubstantiated allegations against the mother. Conversely, the mother, Ms Khalid, presented as distressed and anxious but expressed a desire to co-parent and never deny the father contact. The evaluation noted that the mother had not had any concerns raised about her parenting while residing at a refuge with the children. Crucially, both children expressed a clear wish to live with their mother if reconciliation did not occur, with [X] having refused contact with his father for some time. The court also noted the father's limited time for the children due to full-time work and a new relationship.
The court ordered that the mother have sole parental responsibility for both children, and that the children live with the mother. No specific time orders were made for [X] with the father, beyond the mother encouraging contact. Specific time arrangements were made for [Y] with the father, with provisions for changeovers at the child's school and a mechanism to address non-attendance at school. The court also ordered that school holidays be shared equally for [Y] and determined by [X]'s wishes, with the mother encouraged to facilitate graduated contact between [X] and the father.
Orders
Orders of the court
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.
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.
5.
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.
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.
7.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.