Kima & Kima
[2021] FamCA 257
•29 April 2021
FAMILY COURT OF AUSTRALIA
Kima & Kima [2021] FamCA 257
File number(s): CAC 743 2013 Judgment of: GILL J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PARENTING – where final orders have been made – Rice & Asplund – meaningful relationship with both parents – views of the child – exposure to conflict – risk of future litigation. Legislation: Family Law Act 1975 (Cth) Cases cited: Rice & Asplund (1979) FLC 90-725
Tibb & Sheean [2018] FamCAFC 142
Number of paragraphs: 35 Date of hearing: 28 and 29 April 2021 Place: Canberra Counsel for the Applicant: Mr G Stagg Solicitor for the Applicant: Hijazi Curran Cameron Lawyers Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
CAC 743 2013 BETWEEN: MR KIMA
Applicant
AND: MS KIMA
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.The child, X, born … 2010, will live with his mother.
2.The mother shall have sole parental responsibility for X:
(a)With respect to medical matters involving X:
(i)In the event of an emergency, the parent with whom X is with shall act in accordance with X’s best interests and notify the other parent as soon as practicable.
(ii)Should X require medical treatment the parents shall do all things reasonable to cause the child to attend upon Mr N ("the Practitioner") at K Medical Centre or another medical practitioner at the K Medical Centre if the Practitioner is unavailable.
(iii)In the event of minor medical treatment, the parent with whom X is with shall act in accordance with X’s best interests and notify the other parent as soon as practicable.
(b)In the event of a dispute regarding a serious medical matter:
(i)The parents may consult with a specialist medical practitioner in relation to X referred to them by the Practitioner, including seeking one second opinion; then
(ii)The parents shall consult each other and the Practitioner but in the event that there is no agreement between the parents, and absent cases of emergency, after a period of 21 days then the mother may make the determination.
(c)The mother shall have sole parental responsibility for all other matters involving X which shall be exercised in the following way:
(i)The mother must consult the father in writing in all matters.
(ii)The father is to respond to any communication from the mother within 14 days.
(iii)In the absence of agreement then the mother shall make the final decision.
3.The mother and father do all things necessary and sign all documents required to enable X to be enrolled in and attend J School, Suburb L in Canberra from prekindergarten in 2015 onwards. IT IS NOTED that the mother will be responsible for paying X’s J School fees including levies (if any) until the conclusion of Year 2 in 2018. After that it is intended that the parties will share equally the cost of X attending J School.
4.X shall spend time with the father during the school term time as follows:
(a)Each alternate weekend from after school or 3 pm Friday to the commencement of school or 9 am the following Tuesday;
(b)In the following week from after school or 3pm on Monday until before school or 9am on the following Tuesday.
(c)For the purposes of the above order the father’s weekend time shall commence on the first weekend of each term.
5.X shall spend time with each parent for one half of the school holiday periods unless otherwise agreed in writing as follows:
(a)For the holiday periods at the end of Term 1 and Term 4, with the mother for the first half and the father the second half in odd years and with the father in the first half and the mother in the second half in even years;
(b)For the holiday period at the end of Term 2, with the father for the first half and the mother for the second half;
(c)For the holiday period at the end of Term 3, with the father for the first half and the mother for the second half.
IT IS NOTED that the father's birthday is on … and the mother's birthday is on … and the parties intend for X’s half of the school holiday period with the respectively to fall on their respective birthdays. If the above order does not, for some reason, provide for that then the parties intend to swap their half of the school holidays so as to facilitate this.
(d)The first half of the school holidays is deemed to commence at the end of school on the last school day of the term and deemed to end at the half way point of the school holidays at 12 pm.
6.For the purposes of Order 5 above, in the absence of written agreement between the parties to the contrary, the following Orders apply:
(a)The first half of school holidays is deemed to commence at the end of classes on the last day of school;
(b)One half of the school holidays be calculated by dividing the total number of days the child does not attend school by two. If the number of days are not even, the father is to have the extra day in years ending in an even number and the mother is to have the extra day in years ending in an odd number;
(c)The second half of the school holidays is deemed to commence at 5 pm on the day that falls half way in the middle of the school holiday period.
7.X shall spend time with the father on Father’s Day as agreed, but failing agreement from 4 pm on the day before Father’s Day until the commencement of school the following Monday or 9 am if X is not at school.
8.X shall spend time with the mother on Mother's Day as agreed, but failing agreement from 4 pm on the day before Mother's Day until the commencement of school the following Monday or 9 am if X is not at school.
9.X shall spend time with the parent that he is not in the care of for that day from 4 pm until 7 pm on his birthday.
10.Each parent will ensure that the other parent is listed on any school enrolment form as the joint contact for X.
11.During school holidays, handover is to occur at McDonald's, Suburb M, or as agreed.
12.Except as contemplated in Order 11 of these orders, in the event that X cannot be dropped off at school, the parent with whom X is residing in accordance with these orders will drop him at the other parent's residence at the usual time.
13.Each parent is at liberty to attend any extra-curricular or school activity involving X.
14.Each parent is at liberty to receive any correspondence from the school including but not limited to correspondence regarding the children, general correspondence, school reports, newsletters and the like.
15.The parents shall ensure that the parent that does not have the care of X shall have liberal skype/phone/facetime and the like contact with the other parent.
16.The parents shall ensure that X is able to speak to the other parent at any time reasonably requested by them.
17.Each parent is restrained from injunction from speaking in a derogatory fashion about the other parent in the presence of or hearing of X or allowing third parties to do so.
18.The parties will communicate any routine matters regarding X via email.
19.Each party will keep the other informed of a contact telephone number and residential address and will notify each other within seven days of any change to those details.
20.In the event of an emergency regarding the children the parents will communicate via telephone.
21.Pursuant to s 65Y of the Family Law Act 1975, the mother be permitted to take X out of the Commonwealth of Australia during her time with X in accordance with these Orders provided that:
(a)The mother provides the father at least four weeks' notice of the intended travel;
(b)The mother provides the father with a detailed itinerary providing addresses and phone numbers for the accommodation in which X will be staying, and copies of the airline tickets purchased;
22.Pursuant to s 65Y of the Family Law Act 1975, the father be permitted to take X out of the Commonwealth of Australia during his time with X in accordance with these Orders provided that:
(a)The father provides the mother at least four weeks' notice of the intended travel;
(b)The father provides the mother with a detailed itinerary providing addresses and phone numbers for the accommodation in which X will be staying and copies of the airline tickets purchased;
23.In the event of an emergency (such as a family illness/death), either party is permitted to travel with X to India for a maximum period of three weeks. In these circumstances the notice to the other parent may be less than four weeks, but as early as practicable.
24.The parents be at liberty to attend at the same location for the purpose of attending events for the children or as agreed in writing between the parents.
IT IS NOTED THAT
25.The father intends to make no further application to the Court regarding X.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kima & Kima has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Gill J
The judgment in this matter is given on an ex tempore basis against a background of a two-day case and in the immediate context of exchanges with counsel in their final addresses.
The history of the matter is that the parties have two children, Ms M, who is now an adult, and X, who is 10 years old. Final orders were made following a contested hearing in the Federal Circuit Court on 7 May 2015. Those orders have remained in place and have been followed by the parties since then with minor amendment by agreement. They provide for parental responsibility to primarily vest with the mother, with a fortnightly split of four/ten days between the father and the mother, with the father having Fridays to Mondays in one week and Monday overnight in the following week. X spends half the school holidays with each parent, and there are provisions for special occasions under those orders.
Following the making of those orders there were then extended property proceedings in the Family Court of Australia and ultimately an application by the father for a variation in the orders such that there be an order for equally shared parental responsibility and a 50-50 division in X’s time.
The key (though not the sole) issues fall into five categories.
The first relates to the benefits to X of meaningful relationship with each parent and the capacity of each parent. Much of the evidence in relation to those matters was ultimately not in significant contest. Allied to that issue is the nature of the relationships each parent has with X and their capacity to parent. Again, it was uncontested that there is a loving and warm relationship between X and each of his parents, although there were some disputes around the edges in relation to whether not the mother smacks X which was a contested matter and ultimately not pursued, and as to X’s participation in school and extracurricular activities.
The second key issue is X’s views as expressed to the single expert. They were that his time with his father should be increased and should be more than with his mother.
The third issue is the parental relationship and the adverse impact on X of exposure to the tension, conflict and attitudes of each towards the other.
The fourth matter is that this litigation occurs in the shadow of final orders that have been in place and so it calls into play the principles set out in the case of Rice & Asplund (1979) FLC 90-725.
The fifth matter is the need to minimise future litigation between the parties.
Turning to the first of those matters. The parents have different approaches to parenting and different strengths and different qualities. These have been identified by the single expert as flowing from their individual personalities which he saw as being of maximal benefit to X when divided equally, which arrangement he hoped would ameliorate the deficits of each parent.
It is evident that each of the parents offer X different benefits, for example the mother, on the father's concession, has the greater capacity to organise and arrange X’s life to secure benefits for him while it appears, per the single expert, that the father offers X a more laid-back approach in parenting. Significant heat was apparent in the affidavit material of the parties and in their cross-examination directed to their differing approaches in respect to schooling and extracurricular matters, a matter which will ultimately not bear significant weight of itself. The reasons why it will not be of significant weight in these proceedings is that in his oral evidence the father asserted that he would support the school, study, music, extracurricular regime as arranged by the mother and that he will be prepared to follow directions from the mother, although he considered that in the long term there would need to be changes for X as school becomes more demanding. His declared approach in his oral evidence tacitly acknowledges that the mother's approach is appropriate. The second reason is that the mother's position was that the regime that she has imposed was not important for her personally, but rather for X and as far as she was concerned she would prioritise more X’s happiness than his achievements at school and in extracurricular activities. That is, her evidence was she was not wedded to the current arrangement. So on each of the parties’ own reports, they were not as fixed and polarised on this issue as has been depicted in their written material.
However, there is some reason to take their representations with a grain of salt. For example, to consider the father's failure to provide a musical instrument for X to practice on as indicative of him not according importance to the extracurricular activities arranged by the mother or, to consider the mother's critique of the father's support as indicative of the importance that she places on the educational or extracurricular activities. Even so, in taking their criticisms at their highest it could not be suggested that either approach of the parents taken at their most divergent will be bad for X or reflect a deficit in either of their approaches to parenting. For example, the height of the father's criticism of the mother appeared to be X’s complaint to him that X has had to repeat practising songs too often, such that he, on occasion, loses his voice. That is not a significant parenting issue.
Of greater significance is that the differences in criticisms identified to the parties go to the third issue that I have identified, that is, X’s exposure to conflict in the parental relationship. This was assessed by the single expert as the most detrimental matter that X faces. In a case that does not feature the overt conflict and verbal altercations often seen in this jurisdiction, in a case where the parties keep their communication and disagreements civil and respectful, and where overt pressure on X is not apparent, it remains the case that X, who is an intelligent boy, is acutely aware of the tension between his parents, although how he is aware of that is unclear. That tension impacts X. He experiences toxicity from the tension in a manner that he does not have the cognitive capacity to understand according to the single expert. Very much to their credit the parties, given their turbulent, difficult and at times horrible background of separation which included alleged violence and an ex parte kick out order removing the mother from the premises, communicate now respectfully, although only in written form. It was uncontentious between them that their communications are to be characterised so. Although there was some sniping regarding failures to respond to communication, the examples of such failures were few and far between. However, the limitations in their communications are apparent. It can only be in written form which is suggestive or illustrative of the difficulties that they each individually face in interacting with the other.
The strongest illustration of their limitations involved X’s participation in a musical event at his school. He had apparently made the finals of this contest. The mother invited the father to join a table that she had organised for X’s recital, offering him the opportunity to be at the table with herself and their daughter, but that if he did not wish to do so then she would provide a seat for her sister. The father opted not to do so, instead preferring to sit in another room and watch a video cast of the performance. As it happened the video cast was cancelled and the father also attended in the room that X was performing in, albeit at a different table in a different place within the room. The father explained that he had rejected the mother's invitation to sit at the table with her and their daughter for fear that such an arrangement would descend into conflict. He did not perceive that his choice not sit at the table may have an impact on X.
Other practical examples emerged, for example, the father causing X to see a school counsellor and not informing the mother despite the particular allocation of parental responsibility to her. The father ultimately accepted this as inappropriate and it may be seen as an isolated incident.
Further indications of the mistrust between the parties emerged in that the mother asserts that the father has undermined her within the Indian community. It has not been established that he acted to undermine her, although it may be accepted that he spoke to a limited range of people about their marriage breakup and his concerns for the mother's mental health. However, at the same time it can be seen that the mother's reason for concluding he has done so, due to what has been said to her by third parties, has raised that fear in her mind, even if such cannot be reasonably anchored in the conduct of the husband.
The best then that could be shown about the parties was that they engaged in respectful written communication, that they conducted against a background of unstated, but apparent mistrust and dislike. The limited examples each of them advanced suggestive of goodwill between them did little other than to illustrate how few examples of such could be identified which in itself illustrated the gulf between them.
In summary, the impact of the tension between them on X can be seen as follows. He is experiencing the tension between them. The tension between the adults is toxic to him. X lacks the capacity to cognitively deal with that tension and, as will be explained in the next section on his views, runs the risk of having such tension impact upon and undermine his views.
X’s views
It has been identified that X has expressed to the single expert the desire to spend more time with his father and in fact, more than with his mother. The single expert understandably had some reservations about X’s views. In a context where X has positive relationships with each parent the expert was concerned that X’s view was sourced in part from his desire to please his father. Two issues arose in respect of X’s views.
The first is that his desire to please his father may render the views as based on that desire to please rather than on X having a proper understanding of the implications of such a change.
The second was that it may be that his view is sourced or fuelled in part by the conflict between the parties and simply a reflection of the father's desire that X spend more time with him. Pointers to the second conclusion include the demonstrably untrue negative comments that X made about his mother, for example, that she provides him simply with bowls of rice or insists that he regularly attends holiday programs rather than being cared for by her. Neither of these assertions by X was true, leading to a conclusion that there is some other pressure upon X. I do not find that the father has placed overt pressure on X.
These features mean that there is reason to assign lower weight on X’s view, in part due to a lack of evidence to demonstrate that X understands the consequences of such a change, in part due to the pressure of upon him of the tension between the parties.
There are other issues touched upon by the parties in the litigation.
One of the additional factors identified by the single expert is X’s older sister, Ms M. She has been identified by the single expert as X’s strongest attachment. A summary of the circumstances relating to her are she now lives with the father as a 23 year old having completed her study although it is unclear how transient or permanent that arrangement might be. The single expert assesses her as being the closest relationship for X. She spends regular time with her mother although she lives with the father at present. She has been critical of both of her parents. The single expert saw as an added benefit to X of spending additional time with the father an increase of time with his sister. He observed that the significance of that was limited particularly by the unknown duration of that arrangement.
It was suggested that her view as to X spending more time with the father should bear weight on the basis of her experience with her parents and her knowledge of X. Although it might be seen that Ms M has a unique perspective, she was understandably not a witness, nor is her opinion and the reasons that sustain it sufficiently exposed to allow weight to be assigned to it, or the value of the opinion to be assessed. Accordingly, her view on the matter will not receive any weight.
In determining the orders to be made and the disposition of the matter I start with the consideration of parental responsibility. Section 61DA of the Family Law Act 1975 (Cth) (the Act) provides a presumption in favour of equally shared parental responsibility, which is inapplicable where there are reasonable grounds to believe that a party has engaged in family violence. In this case the parties raised issues of family violence but did not prosecute those claims in the trial such as to pursue a factual finding. However, the provision does not require findings of family violence, that is, it does not require the Court to form a belief on the balance of probabilities that acts of family violence have occurred; rather for the Court to be able to see that there are reasonable grounds for thinking that family violence has occurred. The competing claims of the parties reveal reasonable grounds, rendering the presumption inappropriate. However, even if it was the case that the presumption was applicable, it is not in X’s best interests to make an order for equally shared parental responsibility. Two matters are prominent. The first is the parties are civil but limited in their communication. It may be seen that they have resolved day-to-day issues which speaks well of their efforts, but their limited capacity is shrouded by the underlying tension between them and their capacity has not been directed to the resolution of issues in the nature of those that will be required to be dealt with by an order for equally shared parental responsibility.
Secondly, prior to the proceedings and judgment of Judge Neville, the evidence demonstrates there was a high degree of volatility of the interactions between the parties, with allegations of violence and use of family violence orders and high overt conflict. Since orders were made by Judge Neville which have limited joint decision-making by the careful allocation of parental responsibility it may be seen that there is not a single instance of such conflict between the parties despite the underlying tension between them. These two matters point to the continuation of the current scheme for parental responsibility as being in X’s best interest regardless of whether or not the presumption should be applied. Such a conclusion renders reasoning pathway a s 65DAA inapplicable and it also unnecessary to grapple with Tibb & Sheean [2018] FamCAFC 142.
What orders should then govern X’s life with each of his parents requires careful weighing of factors that pull in different directions. The single expert has identified that X would benefit from greater time and involvement with the father. The single expert has also identified that X’s view is that he should have more time, yet such would occur in a context described earlier of limited relationship and underlying tension between the parties that already bears adversely on X. A circumstance of equal time forces greater and greater need for cooperation on the parties who function on a limited basis already and who cannot even sit together for the father's fear of descent into conflict. It may be concluded that equal time risks exposure of X to greater tension and conflict than that which is already proving to be toxic to him. Despite the single expert's view that even with the potential for such tension or conflict X’s best interest is served by equal time I do not agree. X should have greater time with the father as this reflects his view to which some weight should be attached, albeit limited by the matters discussed already.
X should enjoy the benefits as much as possible of relationship with both parents and the qualities they each individually bring. X should also, however, be protected from the effects of additional tension and risk of conflict and the toxic impact of such on him and the balance should be arrived at by an increase of one day per fortnight, such that on alternate weekends X will spend from after school on Friday until the Tuesday morning, within the off week him spending the Monday overnight until the Tuesday morning with the father. That gives the involvement of the father in a number of school days and weekends and it preserves the arrangements for holidays and special days.
It may be seen that this outcome conflicts with both parties’ cases. Despite Rice & Asplund being raised by the mother, the matters identified as present by the single expert justify such a change as being in X’s best interest, notwithstanding the previous final resolution of the matter.
It may be observed that this will increase the need for cooperation between the parties, but it limits such so as to provide protection for X while increasing the benefits of time for him with both parents.
I was also directed to the issue of further litigation. I am not able to predict what order will or will not result in further litigation. Perhaps the father will think that an increase of one night per fortnight will encourage him to litigate further. He should not be so encouraged as litigation seems to be a clear pathway to increase toxicity for X. Perhaps he is as good as the intention that he offers in offering that a notation be made that he has no intention to make a further application. Such a notation will be added to the orders.
Various other changes were sought by the father. He sought an injunction being placed on the parties in relation to physical discipline of X. I am not persuaded that there is a significant risk of such that is established on the basis of either X’s representations to the single expert or the hearsay assertions of others. In short, the reasons for imposing such an injunction are not adequately made out.
An order was also sought in relation to religious festivals but that was not addressed and no change should be made. Other changes have not been demonstrated to be in the best interest of X.
Accordingly, incorporating the variation in fortnightly time, the orders of Judge Neville that are currently remain operative will be replicated with a minor variation to ensure the Christmas holidays are undisturbed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 29 April 2021
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