Tarak and Khaled

[2007] FamCA 825

FAMILY COURT OF AUSTRALIA

TARAK & KHALED [2007] FamCA 825

FAMILY LAW - CHILDREN - With whom a child spends time - Cultural issues - Interim orders

Family Law Act 1975 (Cth)

APPLICANT: MR TARAK

RESPONDENT: MS KHALED

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2827 of 2005

DATE DELIVERED: 19 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 19 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr J.J. Cantwell

SOLICITOR FOR THE RESPONDENT: Hogg and Reid

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr K. MacFarlane

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Coadys

Orders

1. Consent orders in accordance with the minutes.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2827  of 2005

MR TARAK

Applicant

And

MS KHALED

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. We are in the fourth day of proceedings concerning three children: A, born in July 2001; D, born in August 2004; S, born in February 2006. 

2. Whilst the proceedings commenced before me with each of the parties seeking orders that the children live respectively with them, the father indicated at the opening day that he was prepared to consent to the children remaining living with their mother and that she bear the sole responsibility for their care, welfare and development. 

3. The matter has been litigated on an issue of what time the children should spend with their father and whether or not that time should be supervised.

4. Ultimately the parties have reached agreement about the orders that they seek in these proceedings.  Unfortunately, the proceedings have not lent themselves to me endeavouring to make a final order, and it is inevitable that unless the parties can ultimately reach some agreement outside of the court processes the matter will have to be reinvestigated by the court in about a year's time.  This is unfortunately so because of the very difficult circumstances in which the current crisis arose.  I do not propose to give a lengthy judgment about the matter but I wish to note a couple of salient background features. 

5. The father was born in a northern African country, he is 46.  The mother was born in a neighbouring country, and she is 39.  The father first came to Australia in 1997.  He was married to a Thai national.  There were two children born of that marriage, R, who is now 11, a male child, and F, a female child now aged 8.  Their parents separated in 2000 in circumstances that are not abundantly clear, although the mother returned to Thailand. 

6. The father then travelled to northern Africa where he was introduced to the mother.  They married in the mother’s country in 2000.  The father brought the mother to Thailand, where she was to await for the provision of a permanent visa to come to Australia. 

7. A was born in Thailand in 2001. 

8. From the time the parties moved to Thailand in 2000 until late 2002 the father would commute between Australia and Thailand, spending several months in each place.  Eventually the wife and A received visas to come to Australia and they came in November 2002.  D was born in Australia in 2004.

9. By the time the wife came to Australia both R and F were living with their father in Australia, he says with their mother's permission.  I have not heard from her in these proceedings and I cannot draw any conclusions about whether these children remain in Australia entirely with the mother's agreement, or whether they are here because she feels powerless to do something about it, or for any other reason. 

10. For reasons that again are somewhat controversial, in mid-2005 the applicant father took the respondent mother and the then four children and went to Thailand.  He says it was because he feared there were forces at work in Australia undermining his marriage.  The parties were in Thailand only for a short time when the father abandoned the mother in Thailand and returned to Australia with all four children without advising her that that was what he was intending to do.  One of the more remarkable features of that behaviour was that at that time A was a breastfed child.  The mother was left in Thailand with very little money, without a passport and without her children. 

11. She managed, with the assistance of the […] embassy and the Australian embassy and some charity from an unknown donor to return to Australia, and in a couple of weeks of her being abandoned in Thailand the children were returned to her care.  By that stage she was pregnant with the child S. 

12. Once the children were back in her care she entered into the refuge system, and since September 2005 she has had two children and eventually S living with her and litigation has been proceeding in this court.

13. For almost two years now there have been arrangements made for supervised periods of time for the children to spend with their father.  They have been through the auspices of various contact centres and through the auspices of the Islamic community in Melbourne.  But opportunities for that supervised contact to continue have been made more difficult. 

14. Firstly, the authorities at the N mosque have refused to allow the father to continue with supervised contact there because there were some incidents of inappropriate behaviour.  One of the supervisors who gave evidence before me, and with whom I was very impressed, was a librarian, and his employment opportunities are such that he finds the burden of providing long and regular supervision periods too much to bear.  He is prepared to offer his services for an hour a month, but that is not necessarily consistent with what is best for these children.

15. The present options for continuation of supervised contact are that for six months at Y contact centre in T the children can see their father and presumably their siblings, once a fortnight for three hours at a time.  But that opportunity is only available for the next six months and will expire, presumably, towards the end of January in 2008.  What has now been agreed upon is that six months thereafter there should be further supervised contact or visits under the auspices of an as yet unnamed or unidentified supervisor or supervisors to be agreed upon between all of the parties and the Independent Children's Lawyer. 

16. At the same time on a parallel track the father agrees that he will undergo counselling or therapy by a culturally appropriate counsellor nominated by Dr H, who has been the psychologist preparing reports for the court in this case.  I have seen Dr H give evidence before me and was suitably impressed with both his professional reports and his sincerity in endeavouring to achieve an appropriate outcome for these children and the parties.

17. There is a very difficult road still to be travelled.  There are cultural issues that are difficult to comprehend.  Each party may have different perspectives on what those issues are.  The father is deeply suspicious of the people assisting the mother and the motives of why they have become involved.  There seem to be some political overtones as to his belief as to why they are involved, and these could be long and deep-seated animosities, nationalistic animosities or religious animosities which have thankfully not been fully explored in these proceedings.

18. As Dr H said, the major problem in this case is the trust the mother can put in the father as a parent.  The father is anxious to demonstrate to the mother and to the court that he is a trustworthy person.  He said yesterday, in what appeared to be a moment of appropriate insight, that he understood that there was real grounds for the mother to be scared and wanting supervised contact.  This is hopefully a step in the right direction.  Unfortunately some of his behaviour and correspondence, particularly with the mother's solicitors, have left one wondering whether there is sincerity in his revelation that he understands why the mother needs the reassurance. 

19. He is appropriately anxious to determine how he can move forward and how he and the children can have a proper relationship with each other and with their siblings.  He is particularly concerned about the affect the separation has been having on R and F, who are the children in his sole care. 

20. It should be noted that Dr H has indicated that the father is a suitable person to care for these children, that he is bona fide in his desire to want to love and educate his children, that he can physically provide appropriately for them.  This seems to be evident from in the little I have seen of video clips that have been shown to me.  But for all of that of course has to all be seen through the prism of his behaviour to date and outrageous behaviour that occurred in Thailand in August 2005.  It is going to be a difficult task to rebuild confidence. 

21. A proposal has come out of these proceedings, evolved, that R and F should spend time with their stepmother and their half-siblings.  One of the hopeful side effects will be that it will demonstrate the capacity of the parents to cooperate one with the other and hopefully will build in the mother in these proceedings some confidence the father is capable of adequately caring for children in his care.  She may learn from those children how well they have been brought up, how respectful they are, and how little of the baggage that the father has carried with him has been transmitted to them.  It may give her hope in trusting he has some very positive things to provide for A, D and S, the children of whom she has the responsibility.

22. Those are the comments at this stage that I want to make.  I am not pronouncing, as I have indicated, a full and detailed series of reasons for judgment.  Many of the issues are properly identified, I think, in the last report of Dr H, and I need add no more to them.  This has no doubt been a very emotional exercise for the parties.  It is difficult for the father, who has on a couple of occasions become quite emotional in the course of the proceedings, particularly when addressing the effects that the family breakdown has had in relation to the children in his care.

23. I hope for the sake of the family that the parties can, through the facilities available to them in the broader community, ultimately reach a method by which they can cooperate one with the other with a modicum of trust and faith so that these children can obtain the benefits of a relationship with each of their parents.  The father has obviously much to offer A, D and S that the mother cannot offer them, and they will benefit, hopefully, by being exposed to him and allowing him to provide things he has to offer.  But that can only take place if their primary caregiver is satisfied that it is a safe environment for them.

24. Those comments having been made, I propose to make orders in accordance with the minutes that have been discussed.  I will make them as consent orders and I will ask the independent children's lawyer to provide a clean copy of them.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  16 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TARAK & KHALED