Kharal & Kharal
[2022] FedCFamC2F 1752
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kharal & Kharal [2022] FedCFamC2F 1752
File number(s): PAC 6098 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 16 December 2022 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Airport Watchlist Order – Best interests of the child – Final parenting Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 150 Date of hearing: 5–7 December 2022 Place: Parramatta Counsel for the Applicant: Mr McMahon and Ms Bateman Solicitor for the Applicant: Inner West Solicitors Pty Ltd Counsel for the Respondent: Ms Abdelraheem Solicitor for the Respondent: Christina Lam & Associates Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
PAC 6098 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KHARAL
Applicant
AND: MS KHARAL
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
16 DECEMBER 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child X born in 2018 (“the child”).
2.Until further order each party, Ms Kharal, born in 1981, and Mr Kharal, born in 1989, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X born in 2018 either in the company of an adult or as an unaccompanied minor from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name/names of the said child on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
3.The applicant father or the respondent mother may provide a copy of these Orders to the Consulate General of Country B at Sydney in the State of New South Wales.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kharal & Kharal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction
This final parenting hearing relates to the child X born in 2018 (“the child”).
The final parenting hearing commenced on 5 December 2022 and on 7 December 2022 the Court made certain final consent parenting orders providing for, inter alia, the child to live with the mother and spend time with the father on a graduating basis. Under those consent orders the child’s time with the father would not progress to overnight time until 2030.
The parties then requested the Court determine three outstanding proposed issues:
(a)Whether the parties should have equal shared parental responsibility for the child or the mother should have sole parental responsibility for the child;
(b)Whether the Court should make these proposed orders sought by the mother:
(i)That until further Order each party, [Ms Kharal], born [in] 1981 and [Mr Kharal] born [in] 1989 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, [X] born [in] 2018 either in the company of an adult or as an unaccompanied minor from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s/children’s name/names on the Watch List until the Court orders its removal.
and
(ii)That the Applicant Father or the Respondent Mother may provide a copy of these Orders to the Consulate General of Country B at Sydney in the State of New South Wales.
Material relied upon
The father relied upon:
(1)His affidavits filed 7 December 2019 and 15 June 2020.
The mother relied upon:
(1)Her Case Outline filed 2 December 2022;
(2)Her Amended Response filed 20 May 2022;
(3)Her Affidavit filed 20 May 2022;
(4)Family Report dated 4 August 2021;
(5)Notice of Risk filed 12 March 2020.
The Independent Children’s Lawyer (“ICL”) relied upon their Case Outline filed 11 November 2022 and the following documents:
(1)Family Report dated 4 August 2021;
(2)Child Dispute Conference Memorandum dated 11 May 2020.
The following documents became Exhibits:
(1)Exhibit A: Father’s criminal record
(2)Exhibit B: COPS records
(3)Exhibit C: Father’s medical records
(4)Exhibit D: COPS record
(5)Exhibit E: Supervision reports
(6)Exhibit F: Urinalysis results of both parties
(7)Exhibit G: COPS records
(8)Exhibit H: Family Report dated 4 August 2021 and Psychological Report by Mr C dated 8 August 2020
(9)Exhibit I: WhatsApp messages between the Mother and Father
(10)Exhibit J: Urinalysis and CDT testing results
(11)Exhibit K: Consent Orders of 7 December 2022
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 Cth (“the Act”)) (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
In terms of the parties’ respective evidence, aspects of which the Court refers to below, the Court recognizes that it has made final consent parenting orders relating to the child spending graduating time with the Father in accordance with the parties’ agreement. However, in resolving the above outstanding disputed proposed orders, it is helpful to refer to aspects of their evidence which are relevant to these outstanding matters.
Affidavits of the father
The Court does not propose to set out the entirety of the father’s affidavits relied upon.
The father lives at Suburb D, NSW. He is aged 33 years. The mother is aged 41 years.
He is a Country B citizen. He works as a customer service officer.
The child is the father’s only family in Australia.
An interim ADVO was made against the father for the protection of the child and mother on 21 November 2019.
The father completed a Parenting After Separation course on 18 May 2020.
Affidavit of the mother
The mother has five other children. Two of those children, E and F, aged 17 and 16 respectively, live with the mother.
The parties married in 2017. The mother asserts that the parties were “on and off” after June 2018. They separated in September 2019. The mother then contacted the Department of Immigration to withdraw the father’s spousal visa.
From June 2018 until March 2019, the mother worked with charities and drug rehabilitation centres for support with her separation from the father and her drug history.
On 7 September 2021, interim consent orders were made for X to spend time with the father for two hours each fortnight, such time to be supervised by G Contact Centre at times and dates agreed to by the parties and in the absence of agreement between the parties as nominated by G Contact Service provided that such times do not conflict with the child’s attendance at day care. Since the orders were made, the father started spending supervised visits with X commencing on 25 September 2021.
The child’s supervised visits with the father have been positive.
The mother asserted her concerns in relation to the child spending time with the father as including: the father not having demonstrated any understanding of his ability to bond with the child; the father has never properly cared for the child alone; the father’s temper around the child; that the father may take the child to Country B and not return; and concerns in relation to the father’s mental health – the mother alleges the father has still refused to complete a mental health assessment despite orders made on 18 March 2019 for him to do so.
Under the heading “My communication with Mr Kharal” (the father), the mother asserts:
109.Despite my fears of [Mr Kharal], he continues to message me.
110.Recently [Mr Kharal] messaged me asking me to take me to the movies, that he wants me back, asking me when my day off is. This is despite me telling him repeatedly that I am still afraid of him and that he tried to kill me. Annexed herewith and marked with the letter “O” is copy of these messages.
111. Recently [Mr Kharal] messaged me on Mother’s Day and asked if he can buy me a present then asking if he can borrow $100. Annexed herewith and marked with the letter “P” is a copy of this message.
112. [Mr Kharal] recently messages me verbally abusing me saying words to the effect “you’re cruel, go chock on it, go fk yourself, apparently you are not junkie anymore”. Annexed herewith and marked with the letter “Q” is a copy of these messages.
113.Despite having supervised contact with [X], [Mr Kharal] messages me asking if he can take [X] to the zoo. Annexed herewith and marked with the letter “R” is a copy of this message.
Under the heading “My health” in the mother’s affidavit she states, inter alia:
117.In 2009, after my mother committed suicide I started using marijuana and ice on and off.
118. In 2015, I was clean for a long time.
119.When I first [Mr Kharal] in 2017, I used ice recreationally on a few occasions with [Mr Kharal] because he would buy it for me, but I was not addicted.
120. I have been living a drug free lifestyle since September 2019.
121.I have previously been engaged with [H Centre] in 2018 during my pregnancy and I understand this is no longer required.
X currently attends day care three to five days a week. She has been doing so for the past two years. She loves school and looks forward to big school.
From September 2019 until 25 September 2021, Mr Kharal had no contact with X. This was also largely due to the COVID-19 restrictions affecting the contact centre.
The Mother asserted that during the relationship, Mr Kharal was not involved in X’s day-to-day needs. He was either asleep for most of the day as he worked night shift. He would only wake up and then go to work. He did not spend time with X much during the relationship even though the parties were together.
Under the heading “My Mental Health” the mother states, inter alia:
134. I have no ongoing mental health concerns.
135. I believe that my mental health is at its best now.
136.I have done so much counselling over the years for things I went through as a child as well as drugs counselling, family therapy, parenting courses and so on and did some more with [J Centre] recently while doing my court ordered parenting course and [K Program].
137.I am not engaged with any counselling but am prepared to undertake any future counselling if required or recommended by my GP.
138.I’ve moved close to my extended family, moved away from all toxic friendships and have chosen to stay single and concentrate on my children and myself making so many changes to my life.
Under the heading “My current circumstances”, the mother states inter alia:
161. I am currently single and have not re-partnered.
162.I am currently residing in the [Suburb L] area in private 3-bedroom rental with [X], [E] and [F].
163.[E] and [F] attend school and I am responsible for pick up and drop offs.
164. [Mr Kharal] has not paid me any child support for [X].
165. I continue to live a criminal and drug free lifestyle.
166.There has been no concerns in relation to [X] being in my care since these proceedings were commenced by [Mr Kharal].
167.I receive the full Family Tax Benefit and I have applied to complete my studies in the [allied health sector].
Oral evidence of the father
In evidence in chief, the father stated that the final parenting orders he sought was equal shared parental responsibility for the child; that the child live the mother; and that the child spent time with the father each weekend from 10.00am Saturday to 6.00pm Sunday.
The mother cross-examined the father.
The father stated he lived in a studio. He later clarified his accommodation by stating that he lived in a detached granny flat. He stated that he was ready to move to somewhere else, suitable for the child (and himself), once the Court made final parenting orders.
The father stated that he worked as a transport worker averaging $2,500 per week gross.
The father was asked if he had ever used illicit drugs to which he responded in the negative.
In relation to the contravene prohibition/restriction in AVO (domestic), with the offence dates being 21 May 2020, the father stated that he bought an article online from Amazon and misunderstood the AVO conditions.
The father was cross-examined in relation to his communications with the mother from July 2022. The father stated that he did not recall all the communications and stated that maybe some communications were not respectful towards the mother. In this context the father stated, inter alia, that the mother had made his life hard since separation and that maybe he became upset.
The father was specifically cross-examined in relation to communications with the mother between 14 July 2022 and 28 September 2022. The mother’s counsel played certain audio recordings in respect of this period; the father agreed that he had said to the mother, inter alia, “you mental crazy”. As to calling the mother, “you mental crazy” the father explained that the mother had a history of mental issues, she acted irrationally, she took drugs, and she acted abruptly.
The father agreed that it was his voice on one audio calling the mother a “bitch” however it was highly likely, he asserted, that the mother would have called him something and he had so replied.
The father agreed that he had said to the mother, “you mental health”. He agreed that it was his voice on another audio stating to the mother, “I’ve seen the guy at Town M. The other day. The one you sucked cock for rock. You fucking bitch”.
The father denied that he was affected by illicit drugs including methamphetamine, or heroin, on 23 July 2022.
The father agreed that it was his voice on 23 July 2022 stating, “you pay for it…tomorrow, you fucking junkie.” The father stated that that message was in response to the mother asking for a new drug test; the father was upset because no one was talking about the old drug test (of the mother).
The father agreed that on another audio on 23 July 2022 it was his voice to the mother, stating, “you fucking full of shit.” The father stated that he normally made this statement when someone was lying.
In relation to the audio messages played to the father, the father stated that the mother’s counsel was pinpointing certain messages without giving the context of those messages.
The father agreed that after the mother stated to him, “please leave me alone”, on 23 July 2022, he had responded, “fuck you”.
The father agreed that he had recently written to the mother telling her that he wanted her back, albeit he had done this in frustration, awaiting an outcome from the Court and thinking of different solutions.
The father agreed that in a message to the mother he had asked her to the movies on 18 April 2022. In this context, the father stated that probably waiting two and a half years he had sent those messages. He denied that he wanted the mother back into his life.
The father was cross-examined as to an exchange of text messages with the mother on about 10 May 2022 appearing at page 88 and 89 of the mother’s affidavit. At one point in this exchange of text messages the father messages the mother, “But it does not disturb your things…You just cruel always try find reasons.” Then the mother denies being cruel after which the father denigrates the mother. The mother then sends a text message to the father, “…U think U get what U want or U get mad…”, to which the father responds, “I am not on supervised visits I consent to those because I believe u are a junkie and do not want to upset you so you won’t hurt my child but now apparently you not a junkie anymore.” The father texts the Mother, “Be honest and tell me what you want, y u making things hard for me, what do you get from this… I even asked you if we can get back but you said no, what else I am supposed to do”. In his oral evidence, the father, in partial response to some of these text messages to the mother, asserted that the mother had been withholding the child.
The father stated that he was presently on a class C bridging Visa. He stated that such visa entitled him to work in Australia. When asked if he intended to apply for permanent residency in Australia, the father stated that it depended upon how his life will be after this Court’s determination.
The father stated that every week of his work as a transport worker is different in terms of the number of hours he works. Clarifying, he stated that he was working 40 to 50 hours per week, Monday to Friday. He stated he sometimes works on a weekend being a weekend that he is not spending time with the child. He stated that such work on a weekend distracts him (from the fact that he is not spending time with the child).
The father stated there has never been a formal child support assessment. In this context, he stated that the mother had made multiple lies and (committed) fraud to Centrelink, and that was why she had never asked for (formal child support).
The father stated that he did not see a need to undergo anger management.
The father denied choking the mother in about September 2017. He denied placing his hands around the mother’s throat in February 2018.
It was put to the father that he put his hands around the mother’s throat for about a minute on 21 February 2019, to which the father replied, “I’d say no. I was convicted. There was some incident.” A short time later the father stated that the incident did not involve choking. The father stated that he did complete a behavioural change program as part of the District Court varied sentence, in relation to the above conviction; he stated that this program was on one day for five to six hours.
The father was cross-examined as to a fire that had occurred at the parties’ residence in about April 2019. The father confirmed that he had woken up surrounded by smoke and that he had grabbed the child and taken her to safety. In this context, the father stated that he had also woken the mother (from her sleep, to enable her to escape the fire).
The father was cross-examined again in relation to certain audio messages containing the father’s voice. The father was asked whether his comment to the mother, “suck cock for rock” was verbal abuse. Initially the father stated that this was a common phrase for (illicit drug users) but went on to state that these words were not polite and that sometimes “you’re stuck”.
The father did not accept that he was ever physically violent towards the mother. When questioned as to whether he had been verbally abusive towards the mother the father responded by stating that the mother “was the one”.
The father stated that he had tried to obtain a mental health assessment. He stated his belief that he did not have mental health issues. When he was asked whether he suffers depression or anxiety the father stated that his work distracts him.
The father stated he did not agree with the mother’s proposed Airport Watchlist Order in relation to the child; he stated this was a control tactic by the mother. The father stated he would still like the child to have a passport. He stated that he would still like to travel with the child overseas to Country B; he stated that a week or ten days each year would be suitable. He stated that he was not allowed to travel on his current visa and he was not allowed to get a passport for the child alone.
The father stated that he had used methamphetamines in Australia a few times; he referred to using it in October 2019 after the parties’ separation at the instance of others. On another occasion of use, he referred to going on holiday with the mother and it was supplied by the mother to him.
The father stated that he had complied with the ICL’s requests for urinalysis.
The ICL cross-examined the father.
The father stated that communications between the parties now were non-existent. When asked how he would communicate with the mother, the father stated that he would prefer electronic communications and not written or oral communications.
As to taking steps to improve his communication with the mother, the father stated that he would stick to things relevant to the child and nothing else. He stated that he would stick to the objective.
The father stated that he had completed two sessions of a Triple P parenting course. He stated that he had about six to seven hours to go in that online course. (The Court notes that counsel for the Father informed the Court during submissions that the Father had now completed this course online.)
The father stated that changeovers could take place anywhere with CCTV cameras such as a McDonald’s restaurant.
The father stated that he has work friends and most of those friends have children.
In re-examination, the father stated that working as a transport worker his work hours can be flexible.
The father stated that there were three special days each year that he would like to spend with the child relating to Eid and Country B Independence Day.
Oral evidence of the mother
The mother gave oral evidence.
The mother was cross-examined by the father.
The mother stated that she was now working in a factory as a labourer. She started this work three weeks ago. She worked Monday to Friday from 8.00am to 4.00pm each day.
The mother stated that since March 2022 there had been two text messages passing between the father and the child.
The mother stated there were text messages passing between the parties between April and July 2022.
The mother stated that the father had blocked her on Facebook (but not WhatsApp) in July/August 2022. She stated that in about mid 2022 was her last Facebook communication with the father.
The mother stated that she still has concerns regarding the father spending unsupervised time with the child in light of things that have occurred in the past. The mother stated that even if her concerns were allayed, the child still has to build trust with the father and be comfortable with the father.
The mother stated that any (unsupervised) time spent with the father would need to increase gradually.
The mother stated that she had encouraged the child to have a relationship with the father.
It was suggested to the mother that so long as the child’s prospective time spent with the father goes well, that it would be in her best interests that such time increase. The mother responded that the child was intelligent and the mother could speak to the child. However the mother stated that people “can snap”.
The mother stated that any overnight time spent by the child with the father in the future should not commence until the child was a lot older.
It was suggested to the mother that the father would like to spend half of each school holiday period with the child. The mother stated that if the child’s time with the father “goes great”, the father has work flexibility, and he does not leave the child with other persons, it might be okay.
The mother stated that she had concerns in relation to the father’s emotional attachment to the child; concerns as to whether the father would watch out for the child’s safety and whether or not he would get distracted; and concerns as to whether the father knew the child’s capacities. The mother stated that she did not believe the father would deliberately hurt the child, however she did state that the father did “snap with me”.
The mother stated that she was loving her new job and she had made friends in her work.
It was suggested to the mother that the father’s preference, in terms of communication with the mother, was for electronic communication. The mother agreed with this preference and referred to the possibility of using Family Wizard; she stated that she preferred to have a Family App for communication with the father.
It was suggested to the mother that if the father was to communicate with her but in relation to the child only, that she could communicate with the father about, for example, where the child might attend kindergarten. The mother responded in the affirmative stating that she would “try” to so communicate with the father.
The mother stated that she would be happy to hear the father’s proposals for a high school the child might attend in the future.
Assuming the child spent time with the father on fortnightly weekends, the mother stated that she had concerns as to the child spending time with the father overnight in the off week; she thought such overnight time would be disruptive to the child, however an afternoon spent by the child with the father after school might be appropriate.
Exhibits
The Court does not propose to set out the entirety of the exhibits.
Exhibit H includes a psychological report of the mother prepared by Mr C, clinical psychologist, dated 8 August 2020. The Court accepts the opinions contained in this Report. On the last page of the report it is stated:
e) Any other matters that the expert considers relevant.
It is noted that there is an AVO protecting [Ms Kharal] and she has alleged a history of violent offences being committed against her by [the father] and concerns about access to their child. Those reports suggest potential for interpersonal conflict that could impact [Ms Kharal’s] mental state and possibly her ability to parent her children if she were to become extremely distressed. It will be important for her mental health that any form of interpersonal contact with [the father] in relation to any custody arrangement accounts for those possibilities.
Family Report
Ms N, family consultant, was the Family Report writer; her Family Report is dated 4 August 2021. She interviewed the family in April and June 2021.
The Court does not propose to set out the entirety of the Family Report.
At paragraph 23, the Family Report writer states:
23.[Ms Kharal] reported that in November 2019, she became aware of [Mr Kharal] was[Country B] making threats to abduct [X] including making plans to take the child to and not return. At this point [Ms Kharal] advised that she “stopped letting [Mr Kharal] “seeing [X]” because she genuinely feared for the child’s safety.
At paragraph 101, the Family Report writer states:
101.[Mr Kharal] was asked what orders he is seeking from the Court. He stated that he is seeking to “see [X]” and “to be given permission to take [X] out of the country when he is travelling to [Country B] to visit his family every 2-3 years”.
At paragraph 51, the Family Report writer states:
51.[Ms Kharal] concedes and acknowledges that she has had a history of involvement in relation to DCJ case work and intervention with her family in relation to her parenting, in particular elevated parental risk due to her co-occurring disorders of mental health and substance use disorder and more recently, since she commenced a relationship with [Mr Kharal] exposure of the child [X] to a significant level of family violence and patterns of coercive control, which have undermined her mental health and compromised her substance use disorder recovery.
At paragraph 53, the Family Report writer states:
53.The level of risk in relation to [Ms Kharal’s] identified safety risks and concerns, in particular relapse into methamphetamine use is assessed as currently moderate, but this risk is mediated by a number of identified protective factors which mediate the risk down for [X]. [Ms Kharal] is not in an intimate partner relationship and there is currently a low moderate risk of exposure to family violence if [Ms Kharal’s] re-partners based on the track record. [Ms Kharal] denies that she has any serious mental health condition or psychopathology which undermines her parenting capacity. [Ms Kharal] has continued to engage in ongoing family therapy with [O Families] which is a protective factor. [Ms Kharal] is also supported by a positive extended family network.
At paragraph 55, the Family Report writer states:
55.[Ms Kharal] is also concerns about the ongoing level of risk in relation to [Mr Kharal] in relation to treat to her personal safety and the safety of the child including threats of abduct and that he is a flight risk.
Under the heading “Mental Health”, the Family Report writer states:
62.[Mr Kharal] has provided evidence that [Ms Kharal] has had a history in relation to poor mental health outcomes including admission for suicide attempt and depression/adjustment disorder.
63. [Ms Kharal] denies that she has ever received a diagnosis of any serious mental health disorder or psychopathology that compromises her parenting capacity or functioning. This was supported by [Mr C’s] recent Confidential Psychological Assessment, together with her recent presentation during this assessment. [Ms Kharal] claims that her mental health his currently well managed and stable. [Ms Kharal] continues to engage in ongoing therapy and support with [O Families]. This is a protective factor together with [Ms Kharal] positive extended family support network and her participation in the workforce. The current risk to the child is assessment as low to moderate whilst [Ms Kharal] remains drug free.
The Family Report writer stated at paragraph 99:
99.Although [Mr Kharal] acknowledges incidents of family violence occurred and concedes there has been more than one ADVO granted against [Mr Kharal] naming [Ms Kharal] as the person in need of protection, [Mr Kharal] tends to characterise himself as the victim. [Mr Kharal] appears to minimise the violence and/or deny that it occurred. He also deflects responsibility and blame for outbursts of aggression/violence and control directed toward others outside of himself, seeing himself as a passive agent, helpless to intervene. He locates the cause of the violence which occurred with [Ms Kharal], failing to take responsibility for how his own behaviour may have contributed. [Mr Kharal] shows a void of insight and understanding concerning the impact of exposure to family violence impacts the child or how it may contribute to undermining [Ms Kharal’s] personal safety, mental health, parenting capacity and functioning.
At paragraph 220, the Family Report writer stated:
220.[Ms Kharal] said her gravest fear was that if [Mr Kharal] was granted a travel visa allowing him to travel outside of Australia with [X], he would take her to [Country B] and not return”.
At paragraphs 231–232, the Family Report writer stated:
231.[Ms Kharal] confirmed that she finally separated from [Mr Kharal] in September 2019. In November 2019, [Ms Kharal] reported that she became aware that [Mr Kharal] was planning to “take [X] to [Country B] and not return”. [Ms Kharal] advised that she stopped allowing [Mr Kharal] to any spend time with [X] and cancelled her support for [Ms Kharal’s] spousal immigration visa.
232.[Ms Kharal] stated that once she stopped allowing [Mr Kharal] from spending time with [X], [Mr Kharal] initiated the current legal proceedings requesting and order to permit him to spend time with [X]and to travel with her out of the country to [Country B].”
At paragraph 233, the Family Report writer stated:
233.[Ms Kharal] does not believe the quality of communication between herself, and [Mr Kharal] is likely to improve. They currently have no communication concerning [X] except through legal representatives and the current ADVO is in place until April 2022.
At paragraph 238, the Family Report writer stated, under the heading “Adult relationships”:
238. The quality of the parental post separation relationship is poor. There are extremely low levels of trust and high levels of unresolved conflict. There is no track record of successful co-parenting or collaborative decisions making on behalf of the child.
239.The relationship between [Mr Kharal] and [Ms Kharal] is further restricted by a significant history of family violence both during the relationship and after the separation. There is a history of ADVOs being in place against [Mr Kharal] naming [Ms Kharal] as the person in need of protection. There is also a history of breach of ADVOs by [Mr Kharal].
240.There is a current 2-year ADVO in place which commenced in March 2019 and is due to expire in March 2021. The term s of the ADVO prohibits any direct communication or contact between [Mr Kharal] and [Ms Kharal].
241.All communication has broken down. The only conduit of communication which occurs between the parents which concerning [X] is through legal representatives.
242.Both parents present divergent versions of events in respect of the family violence which occurred in the relationship and who may be responsible. Based on the current assessment it is unlikely that the conflict will decrease, or the quality of the parents’ post separation relationship and communication is likely to improve over time and the dispute is unlikely to respond to mediation or counselling.
Under the heading “Collateral Information”, the Family Report writer stated:
Confidential Psychological Assessment – [Mr C], Clinical Psychologist, [P Psychology Practice] - 8 August 2020.
270.See Assessment undertaken in June 2020 – and written Report dated 8 August 2020.
271.It is relevant to note that the findings and opinions set out in [Mr C]’s Confidential Psychological Assessment are accepted by the family consultant and seen as consistent with the findings of this current assessment, especially in respect of the question [Ms Kharal’s] mental health and any underlying psychopathology, as well as the section marked (e) any other issues where [Mr C] discusses the risks and likely impact of ongoing contact with [Mr Kharal] on [Ms Kharal’s] mental health.”
At paragraph 293, the Family Report writer stated, inter alia:
293.[Ms Kharal’s] physical and mental and psychosocial presentation during unstructured interviews and observations together with [X] as well as joint observation of her interaction with [X] and her three older children showed no indication that she was drug affected or experiencing symptoms consistent with a serious psychiatric condition or psychopathology. Though her presentation was consistent with anxiety and heightened emotion and hypervigilance when aware of [Mr Kharal] being in close physical proximity with [X] and in the physical vicinity of hers and [X]’s location.
The Family Report writer stated at paragraph 315:
315. The Family Consultant’s view of the parties having shared parental responsibility is that this is not viable based on the ongoing risks and the complete breakdown of communication between the parents. The quality of the parental post separation relationship is poor. There are extremely low levels of trust and high levels of unresolved conflict. There is no track record of successful co-parenting or collaborative decisions making on behalf of the child.
The Family Report writer then recommended that the parties not have shared parental responsibility for decisions regarding the child.
The Court accepts the evidence of the Family Report writer subject to any view of the Court to the contrary, whether express or implied, as discussed below under section 60CC of the Act.
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Under section 60CC(2A) of the Act, the court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration.
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA(1) of the Act. Sub-section (2) of section 61DA provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in, inter alia, family violence.
The best interests of the children
Section 60CC considerations
(2)(a) (the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration)
In Saif & Saif [2020] FamCA 119, Foster J stated:
95.The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96.In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[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 one. Quantitive 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.
97.In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The parties separated in September 2019.
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The child’s primary attachment is to the mother; the mother has been her primary carer from birth to date.
The child likely had a meaningful relationship with the father as at separation in September 2019. The child then did not spend regular time with the father until about October 2021 when supervised time commenced. That supervised time has continued on a regular basis up to the present time and which occurs fortnightly at a contact centre. Presently it is likely that the child has a meaningful relationship with the father.
Prospectively, the child should benefit from having a meaningful relationship with the father.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court will firstly deal with the contested issue of alleged physical family violence; the mother contends that the father was the perpetrator of such violence which is denied by the father. The Court will then deal with the contested issue of alleged coercive and controlling family violence on the part of the father, to which the father denies.
On about 17 June 2020 the father was convicted of “intentionally choke etc person without consent (DV)-T1”, the victim being the mother, with the offence having occurred on 21 February 2019. The Court accepts the mother’s evidence in relation to this conviction. On appeal to the District Court, the Local Court sentence of imprisonment (non-parole period of nine months) was varied to an Intensive Correction Order. That order provided, inter alia, that the father complete a behavioural change program for domestic offenders. The father completed a behavioural change program as part of the District Court varied sentence, in relation to the above conviction; this program was on one day for five to six hours.
The Court finds that during the parties’ relationship the parties had a significantly conflictual relationship and that there was probably verbal abuse by each of the parties towards the other.
On the balance of probabilities, apart from the above incident on 21 February 2019, the Court is not persuaded that throughout the parties’ relationship and thereafter the father perpetrated physical violence upon the mother as alleged by her.
The Court refers to the mother’s allegations of coercive and controlling family violence perpetrated against her by the father. The Court is not persuaded that the father did perpetrate such coercive and controlling family violence against the mother as alleged by her.
The Court finds that the father lacks significant insight into the nature and harmful effects upon the mother of the above referred very serious family violence perpetrated upon the mother on 21 February 2019; the father denies he perpetrated this violence upon the mother.
The Court finds that the mother has likely addressed her previous problems with illicit drug use and no unacceptable risk of harm is posed to the child in this context.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(3) (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has been making the major decisions for the child from birth to date. Subject to the above, both parents would appear to have taken, or sought to have taken, such opportunities.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parents would appear to have maintained the child when the child was in their care pre-separation, however the preponderance of the children’s care, time wise, has been provided by the mother. The father does not pay formal child support.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Should the child be taken to Country B by the father and the father not return the child to Australia, or not return the child to Australia in a timely fashion, there is a significant risk if not a likelihood that the child’s meaningful and important relationship with the mother will be jeopardised if not detrimentally affected and resulting in the child experiencing psychological harm.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Should the child be taken to Country B by the father and the father not return the child to Australia, or not return the child to Australia in a timely fashion, there is a significant risk that the mother would experience practical difficulties in successfully prosecuting legal proceedings in Country B for the child’s timely return to Australia, noting that Country B is not a signatory to the relevant Hague Convention.
(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The mother has such capacities.
Subject to the Court’s discussion above under the need to protect primary consideration, the father’s parenting capacities are probably significantly less than the mother’s sound capacities, with the Court observing that the father’s time with the child has been limited to supervised time at a contact centre since about October 2021. The Court refers to the Family Report writer’s evidence in this context whilst noting that the Family Report was prepared prior to the commencement of the father’s supervised time with the child.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child is progressing and developing well living with and being cared by the mother.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The Court refers to its discussions above under the need to protect primary consideration. Otherwise, the parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child’s family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
On 28 February 2019 an ADVO was made against the father for the protection of the child and the mother. On 20 November 2019 that order was varied, inter alia, by providing that the father must not approach or be in the company of the child or mother for at least 12 hours after drinking alcohol or taking illicit drugs; the father must not live at the same address as the child or the mother; and the father not to contact the mother unless through a lawyer, or to arrange contact with the child or to arrange/attend mediation.
On 5 March 2020, a final ADVO was made against the father for the protection of the child and mother for two years.
On 15 October 2020, in the Local Court, a conditional release order without conviction for 18 months was made against the father in relation to the offence charged of contravene prohibition/restriction in AVO (domestic), with the offence date being 21 May 2020. The contravention related to the father sending things to the mother as he was not meant to have the mother’s address.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The mother’s proposed orders, discussed above under the Court’s Introduction, would be least likely to lead to the institution of further proceedings in relation to the children; see below.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
Not applicable.
Parental responsibility
The mother seeks an order for sole parental responsibility for the child which is supported by the ICL but opposed by the father. He in turn seeks an order that the parties have equal shared parental responsibility for the child. The presumption of equal shared parental responsibility does not apply because the Court has found that the father perpetrated very serious family violence upon the mother during their relationship.
It will be in the best interests of the child that the mother have sole parental responsibility for her. In this regard, the Court takes into account the parties’ significant lack of trust with each other in relation to the child, their lack of any significant co-parenting relationship, the mother’s primary care of the child from birth to date and her satisfactory major decision-making in relation to the child, the quality of the parties’ electronic communication with each other is barely satisfactory and is often abusive, and the father’s perpetration of family violence and related lack of insight into such violence (as discussed above under the need to protect primary consideration).
At this point the Court should emphasise that the father’s continuing lack of trust in the mother is palpable, in particular his lack of trust in the mother relating to what he inferentially contends to be the mother’s likely continued reliance upon illicit drugs; he was at pains during his evidence at trial and during his final oral submissions in contending, at least inferentially, that this was the case.
The Court also takes into account the real risk that if the mother is required to reach agreement with the father in a timely fashion, relating to major decisions to be made for the child, that she will experience stress and anxiety in having to so communicate with the father, taking into account, in particular, her mistrust of the father significantly arising from being the victim of very serious family violence perpetrated upon her by the father during the relationship and to which the father continues to deny. The experience of such stress and anxiety may well have a detrimental impact upon her parenting capacity for the child.
An order that the mother have sole parental responsibility for the child will minimise the risk of conflict occurring between the parties if they otherwise had to reach agreement in relation to major decisions for the child in a timely fashion. The Court is not satisfied that these parties could reach agreement in a timely fashion in relation to major decisions affecting the child without conflict.
Restraint upon the parties removing the child from Australia and Airport Watchlist order
The father, who hails from Country B, wishes to be able to travel to Country B with the child for holidays; the father has extended family there. This is opposed by the mother and ICL.
The father’s ties to Australia are not significant, apart from the fact that he is the child’s father; he owns no significant property in Australia, he resides and works in Australia by reason of a bridging visa and his permanent visa application is yet to be determined by the Australian Government, and presently he has no significant partner here.
Again, the father’s mistrust of the mother is significant and palpable, particularly in relation to his contention, at least inferentially, that the mother continues to have a reliance upon illicit drugs. The Court would assess the risk of the father travelling with the child to Country B and not returning to Australia, or not returning with the child to Australia in a timely fashion, as a significant risk, if the parties were legally entitled to remove the child from Australia. The Court accepts the mother’s evidence relating to the father travelling to Country B with the child including her personal concerns in this regard. The Court takes into account, in this context, the fact that Country B is not a signatory to the relevant Hague Convention. It will be in the best interests of the child that the Court make the mother’s proposed restraint and Airport Watchlist Order relating to the child not being permitted to be removed from Australia by the parties.
In circumstances where the mother has sole parental responsibility for the child, the Court is of the view that it will not be in the best interests of the child to make an order that the mother be required to initially seek the views of the father in relation to any proposed major decision to be made by her for the child, and then take those views (if provided) into account before making her decision; in the view of the Court there is a significant risk that if required to do so the parties will experience conflict and moreover the mother will experience stress and anxiety in having to so communicate with the father.
The mother’s proposed related order that either party may provide a copy of the Court’s Orders to the Consulate General of Country B at Sydney will also be an order in the best interests of the child; such related proposed order may well aid in the enforcement of the Airport Watchlist Order and provide increased peace of mind to the mother who has consistently asserted her fear of the child being removed to Country B by the father if he was permitted to do so.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following parenting orders:
1.The mother have sole parental responsibility for the child X born in 2018 (“the child”).
2.Until further order each party, Ms Kharal, born in 1981, and Mr Kharal, born in 1989, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X born in 2018 either in the company of an adult or as an unaccompanied minor from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name/names of the said child on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
3.The applicant father or the respondent mother may provide a copy of these Orders to the Consulate General of Country B at Sydney in the State of New South Wales.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 16 December 2022
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