Shaheed & Kameel
[2022] FedCFamC1F 661
Federal Circuit and Family Court of Australia
(DIVISION 1)
Shaheed & Kameel [2022] FedCFamC1F 661
File number(s): PAC 1535 of 2022 Judgment of: BRASCH J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW – CHILDREN – Best Interests – Communication – Where the father made an oral application seeking communication with the child – Where serious allegations of family violence made by both parties – Where mother and child live in an undisclosed location in Country D – Where consideration of the child’s best interests Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC, 60CC(2), 60CC(3), 60CC(2A), 69ZL
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Franklyn v Franklyn [2019] FamCAFC 256
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
R & C [1993] FamCA 62
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Leandra & Randles [2021] FedCFamC1A 51
Division: Division 1 First Instance Number of paragraphs: 62 Date of last submission/s: 22 August 2022 Date of hearing: 4 August 2022 Place: Sydney Counsel for the Applicant: Ms Gibbons Solicitor for the Applicant: Sandhu Legal Professionals Solicitor for the Respondent: Family Law Practice Australia Pty Ltd Solicitor for the Independent Children's Lawyer: Family Focus Legal Pty Ltd ORDERS
PAC 1535 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHAHEED
Applicant
AND: MS KAMEEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
2 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The father’s oral application for communication with the child X, born in 2013, is dismissed.
THE COURT NOTES THAT:
A.The effect of the order above is that no order is made for the child to have communications with the father.
B.The matter is listed for an Interim Hearing on 28 November 2022 at 10.00 am.
C.A Child Impact Report will be available for that Interim Hearing.
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 the pseudonym Shaheed & Kameel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
Introduction
This matter came before me on 4 August 2022 for a Case Management Hearing. Orders were made by consent for the parties and child (born in 2013) to attend upon the office of a private professional for a report analogous to a court-provided Child Impact Report.
The interviews for that Report were scheduled for 25 August 2022 and in person, unless the professional directed otherwise.
An interim hearing is listed before me on 28 November 2022 at the … Registry, but with the mother given leave to appear by Microsoft Teams.
Towards the conclusion of the Case Management Hearing, the father’s representative brought an oral application that there be “some communication between father and child”.
This would not have come as any surprise to the other parties. At an earlier hearing before a Registrar on 6 May 2022, the father agitated for Zoom time with the child, and the mother was to give instructions about a proposal. I was told this at the Case Management Hearing. The Registrar’s 6 May 2022 Order contained the following Notation:
F. As of today’s date there is no agreement between the parties as to whether the father should communicate with the child by telephone or video. The Applicant Father may still press for interim orders to be made in this regard.
When asked about the oral application, the Independent Children’s Lawyer (“the ICL”) said, “I don’t have any objections to telephone communications being ordered today. However, it might prejudice the mother in circumstances where there is no evidence before you”.
The mother opposed any communication with her legal representative saying, “I can already indicate that the mother will not consent to that because of her assertions”.
The parties agreed to a procedure by which I could determine the matter in Chambers. Thus, I ordered the parties to exchange proposals. If agreement could be reached, then proposed orders were to be sent to chambers for consideration. If agreement could not be reached then a proposed minute of orders and written submissions of no longer than five pages were required by 12 August 2022. The mother’s and father’s submissions were received as ordered.
Unfortunately, the submissions from the ICL were not received until 22 August 2022. I do not say that critically, as the ICL had been ill.
MATERIAL
The respondent mother relied upon the following documents filed on 25 April 2022:
(a)Affidavit of Ms Kameel;
(b)Affidavit of Ms B;
(c)Affidavit of Mr C (referred to as “the former family friend” below);
(d)Notice of Child Abuse, Family Violence or Risk;
(e)Parenting Questionnaire; and
(f)Her written submissions received 12 August 2022.
Doing the best I can on the father’s submissions, he relied upon his affidavit of 13 April 2022 along with his written submissions received 12 August 2022.
As said, the ICL provided her written submissions on 22 August 2022.
Background
By way of brief background relevant to the oral application, Mr Shaheed, born in 1980 (“the father”), and Ms Kameel, born in 1983 (“the mother”), were both born in Country D (“the parties”).
The father came to reside in Australia in or about early 2006. The mother moved to Australia in or about 2007.
According to the mother, the parties commenced cohabitation in Australia in 2010. It is agreed they married in Country D in 2012 and thereafter returned to Australia a month or so later. The parties separated under the same roof in November 2020. The mother, with the child, moved out of the former matrimonial home on 15 August 2021.
The parents have one child, X, born in 2013, in Country D (“the child”). The mother and child returned to Australia when the child was about six months old.
Both parties allege serious family violence against the other, and in the father’s case, he also made allegations of violence and abuse by the former family friend.
The mother’s allegations included, but are in no way limited to the following. In January 2020, she alleged the father slapped her in the face, took her shirt off and then pushed her “out of the house, half naked and locked the door” (mother’s affidavit filed 25 April 2022, paragraph 39). She said their son was present, or at least within hearing.
She also alleged that in or about April 2020, a few days later after she had burned her hand cooking, she heard the child screaming. She went to the child and alleged she saw the father beating the child with a clothes hanger. She also alleged, “[Mr Shaheed] then squeezed my swollen hand until blood and pus came out” (mother’s affidavit filed 25 April 2022, paragraph 43).
The mother’s many allegations also include this:
On or about [early] 2021, I made an attempt to call the Police when I was abused and beaten up so badly by [Mr Shaheed]. [Mr Shaheed] managed to snatch my phone away and poured kerosene all over my body and himself and was threatening that if I called the Police he would kill us with a cigarette lighter in his hand. All this occurred in the presence of [X] [the child] and he was crying uncontrollably. I was forced by [Mr Shaheed] to promise to him that I would never inform the Police or anyone of this incident. I have still kept the dress I was wearing at the time of the incident. [Mr C] came in time to save me from the dire situation and he took a photo of [Mr Shaheed] on or about [early] 2021 and of my dress sealed in a plastic bag on another day. After this kerosene incident I could not sleep many nights and having nightmares being burnt alive by [Mr Shaheed]. The photograph of [Mr Shaheed] with kerosene on him and my dress with kerosene in the plastic bag are part of Annexure C herein.
(Mother’s affidavit filed 25 April 2022, paragraph 47)
The former family friend deposed in similar terms to what he said he witnessed of the above. The mother also deposed:
I did state that I was in [City E] on or about [late] 2021 and this was so I could escape to go to [Country D] and travel on or about [late] 2021. This was to save [X] and my life. I am concerned that [Mr Shaheed] can travel to [Country D] and possibly kill me and/or [X] as I have broken my promise to not tell anyone of what [Mr Shaheed] did to us. Also, one day when I do return to Australia, [Mr Shaheed] can possibly kill me if I ever am required to attend Court or he finds out where I will be residing in Australia. [Mr Shaheed] is very dangerous and [X] and I are very fortunate to be alive.
(Mother’s affidavit filed 25 April 2022, paragraph 80)
I understand from this that in addition to asking for positive findings about violence and abuse at trial, she will also be advancing what is colloquially called a Russel & Close case (R & C [1993] FamCA 62).
The father denied the allegations of violence and abuse made by the mother, and, denied that the child is fearful of him. The father also made allegations of family violence perpetrated by the mother and the former family friend, who was living with them at the time. He also contended these events took place in the presence of the child. The father further contended that the mother encouraged the child to throw stones at the father and that she used excessive force to discipline the child.
His allegations include that in early 2021 he saw the child crying and with bruises on his arms. The father added, “Upon asking, he [the child] said words to the effect “Mom [sic] beat me with the stick because I threw rice” (father’s affidavit filed 13 April 2022, paragraph 13).
In 2017, he alleged the former family friend “struck me across the face and arms with hid [sic] hands…” and added the mother, “joined in the assault and hit me on the back and kicked me in the leg” (father’s affidavit filed 13 April 2022, paragraph 16).
In early 2021, the father alleged that the former family friend “charged towards me and slapped me in the face and grabbed my hands. [The mother] joined in and began hitting and punching me as well” (father’s affidavit filed 13 April 2022, paragraph 19).
There have been no reports to NSW Police or family violence orders in place.
It is common ground that the child and father have had no time or communications since on or about late 2021. On this date, the mother alleged as follows:
…Then an argument ensued and he then pushed me away, picked up stuff and threw it at me. He then pushed me extremely hard. I fell onto the floor and hit my hand on a glass bottle which cut through my hand. I started bleeding all over my dress, in the living room and later in the car. [Mr Shaheed] went to his room and locked the door. Unfortunately, [X] witnessed the whole incident. [X] helped me get up from the floor and said: “Ma we are not coming here again.” He then shouted at [Mr Shaheed]: “Beat me up if you want but not my mom [sic]”. I hugged [X] filled with blood and walked off to [Mr C] who was outside the matrimonial home waiting in the car. Afterwards, I emailed [Mr Shaheed] with the subject line “U will kill me” and attached 3 of the photos of my injuries he inflicted on me.
(Mother’s affidavit filed 25 April 2022, paragraph 54)
The father’s affidavit is silent on this issue, but the one affidavit of the father I had before me predates the affidavit of the mother where this is alleged.
In late 2021, the mother and child left Australia and now reside at an undisclosed location in Country D. The parties are in dispute about whether the father consented to that or not. I cannot and do not need to resolve that dispute for the purposes of the oral application.
Principles
This is an interim hearing, and accordingly, shorter reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (“the Act”). It is also a matter that falls within Part VII of the Act, with its objects and principles at s 60B. The best interests of the child are paramount in deciding whether to make a particular parenting order in relation to the child, as provided by s 60CA of the Act. The considerations to assist me in determining those best interests are set out at s 60CC.
The Full Court in Goode & Goode (2006) 36 FLC 93-286 (“Goode”) set out at paragraphs 81-82 the approach to be adopted in interim parenting matters:
In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
In an interim case that would involve the following:
•identifying the competing proposals of the parties;
•identifying the issues in dispute in the interim hearing;
•identifying any agreed or uncontested relevant facts;
•considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
•deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
•if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
•if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
•if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
•if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
•if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
•even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The present proposals of the parties are in short compass – whether I order communication between the child and father, or not. Mindful of the discrete nature of the oral application and s 69ZL of the Act, I do not intend to traverse all that is said in Goode above. For example, there is no application before me with respect to parental responsibility and time orders are not sought. There is a common fact though: the child and father have had no time or communication since September 2021.
Serious allegations of family violence are made by each parent, and are in dispute. To that end, I refer to Leandra & Randles [2021] FedCFamC1A 51 at [35]:
However, it does not follow that merely because there are facts in dispute, the evidence on the issue should be disregarded but one must approach fact finding in interim maters with considerable circumspection.
Similarly, in SS & AH [2010] FamCAFC 13, the Full Court said at [100]:
…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
More recently, the Full Court decision of Franklyn v Franklyn [2019] FamCAFC 256 observed at [72]-[73]:
Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (see Salah & Salah (2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]), but remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything the mother alleged without regard for other evidence and the wider context.…
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (see Goode and Goode (2006) FLC 93-286 at [68]), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of the mother’s submissions in support of Ground 2(c), judges are not required to treat all untested evidence as bearing the same weight.
As for risk, or unacceptable risk (which is at the heart of the mother’s written submissions), the Full Court very recently clarified in Isles & Nelissen [2022] FedCFamC1A 97 (“Isles”) that past allegations of violence and abuse are to be determined by reference to s 140 of the Evidence Act 1995 (Cth). However, that case concerned a final hearing, whereas this is an interim consideration. The Appeal Court added that the assessment “of ‘unacceptable risk’ cannot be measured by the civil standard of proof”. Rather, I look to realistic possibilities (see Isles at [86]).
I cannot however, on an interim basis, make any findings about the disputed allegations of violence and abuse. I therefore do not have findings to help inform me about future, realistic possibilities.
Instead, it is well established that a court ought take a conservative approach at an interim hearing. See for example Marvel & Marvel (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654 104) the Full Court commented at [120]:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…
And at [122] and [123]:
In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In short, given the nature of the allegations in dispute, I must take a cautious approach and consider “the likely impact on the child in the event that a controversial assertion is acted upon or rejected”. It must also be borne in mind that the only application before me right now is whether to order communication between father and child, or not.
SECTION 60CC CONSIDERATIONS
In determining the best interests of the child there are two primary considerations and many additional considerations to take into account. I have taken all those matters into account, even though I will not specifically identify each of the subsections, as under 69ZL of the Act I am permitted at this interim hearing to give reasons in short form.
The two primary considerations, set out in section 60CC(2) of the Act and referred to as the “twin pillars” in the decision of Mazorski & Albright (2007) 37 Fam LR 518 are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am required pursuant to section 60CC(2A) of the Act to give greater weight to the second of those two primary considerations.
Submissions and discussion
It was the mother’s case that the child should have no communication with the father as it would be contrary to the child’s best wishes.
The mother’s submissions were, essentially, that the father posed an unacceptable risk of psychological harm to the child should he be permitted to communicate with the child. She made submissions, borne from her affidavit, about his lack of insight and her “grave fear” that the father would make enquiries of the child as to their whereabouts, therefore posing a high risk of family violence against the mother and/or child. She deposed to a fear that he would travel to Country D and kill her and/or the child.
The mother further submitted that in making an order for communication between the father and the child, the child would be made to do so against his wishes which would be “extremely traumatising for the child” (mother’s submissions filed 12 August 2022, paragraph 27). I have no evidence to support this submission and will, for present purposes, disregard it. It may be something upon which the Child Impact Report will shed some light.
The gravamen of the father’s submissions were that the child was unilaterally taken to Country D on the pretence of a holiday. It was his position that he and the child share a “great and loving relationship” (father’s submissions dated 12 August 2022, paragraph 1) and that there are no concerns of safety or risk should the child be permitted to have contact with him. The father contended that there was no supporting documentation to support the serious allegations raised by the mother pertaining to family violence. Further, the father submitted that:
The continuous keeping away of the child from Australia and facilitating no contact between the father and the child is the abuse by mother of her position and would affect the child’s relationship with the father in the future and his development as both parent’s affection is useful for children’s development.
The father’s submissions, like the mother’s, highlighted the various and serious allegations made in this manner, none of which I can determine on this oral application.
Whilst it seemed that the ICL was open to communication orders being made when before me on 4 August 2022, the ICL’s written submissions were clear - she did not support any communication, and submitted, in summary, that pending further order, the child spend no time or communicate with the father. This was on the basis that these were interim proceedings and should await the pending expert assistance and any independent material.
I agree. I agree because both parties make very serious allegations against the other, much of it said to be in the presence of the child. Further, whilst I cannot resolve those disputes on an interim basis, the authorities referred to above tell me that I must act cautiously in circumstances such as the current.
Instead, I will have the Child Impact Report before me in November, which may better assist me in determining what might be in this young boy’s best interest on an interim basis.
In reaching that view I have had regard to the following s60CC(3) additional considerations:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Subsection (3)(a) – any views expressed by the children and any factors (such as each of the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
·Subsection (3)(b) – the nature of the relationship of the children with each of the child’s parents and other persons, including any grandparent or other relative of the children;
·Subsection (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the child that the court thinks relevant; and
·Subsection (3)(h) – issues pertaining to the culture of the children if the child is Aboriginal or a Torres Strait Islander (not applicable here).
I have what the parents tell me, but will have the Child Impact Report in a matter of weeks which should be a more independent source of information for me to consider these factors.
Issues relating to the parents – decision-making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Subsection (3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children;
·Subsection (3)(ca) – the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
·Subsection (3)(f) – the capacity of each of the children’s parents, and any other person, to provide for the needs of the children, including emotional and intellectual needs; and
·Subsection (3)(i) – the attitude to the children, and parental responsibilities, by each of the children’s parents.
Again, I have what the parents tell me, but will have the Child Impact Report in a matter of weeks.
Effect of change:
·Subsection (3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on each of the children of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the children have been living.
It is common ground that the child has not had time or communication with the father since September 2021. I am not prepared to make a change to those arrangements now, when a more fulsome interim hearing is only weeks away.
Practical difficulty of implementation:
·Subsection (3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
There would be no practical difficulties for communication orders, but that stands against the fear to which the mother deposes of the father asking the child questions to ascertain their location. I should be better equipped to consider this once I have the Child Impact Report.
Issues of family violence:
·Subsection (3)(j) – any family violence involving the children or a member of the children’s family; and
·Subsection (3)(k) – any family violence order that applies or has applied involving the children or a member of the children’s family and if applicable, taking into account a number of stated matters.
This looms large on both parties’ cases and requires, as I have said, taking a cautious approach to the orders sought in this oral application for father-child communication.
Avoiding further proceedings:
·Subsection (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 children.
This matter is currently irrelevant. The matter is listed for an interim hearing in November 2022.
Other relevant matters:
·Subsection (3)(m) – any other facts or circumstances the court considers relevant.
At the risk of labouring the point, I will have the Child Impact Report soon, which may shed more light on what I may consider to be in the best interests of this child.
CONCLUSION – PARENTING
For the reason given above – in particular, that authorities referred to which require me to act cautiously given the serious allegations that are made by both parties, and, that I will have a Child Impact Report in a matter of weeks – I will dismiss the oral application for communication between the child and his father.
However, this is not to suggest, nor is it to be read or interpreted by the father, that this specific outcome means that at the hearing of the interim application I may not do something completely different. I will have independent evidence from the professional chosen by the parties to assist and inform my considerations. It may well be that the ICL and/or the parties have documents returned on the issuing of subpoena that might also assist my considerations of what is in this child’s best interest on an interim basis.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 2 September 2022
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