ABANI & ABANI (No.4)

[2018] FCCA 969

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABANI & ABANI (No.4) [2018] FCCA 969

Catchwords:
FAMILY LAW – Enforcement – limited parenting – sole parental responsibility for major long term medical issues.

Applicant: MS ABANI

Respondent: MR ABANI

File Number: PAC 4493 of 2012

Judgment of: Judge Obradovic

Hearing date: 16 April 2018

Date of Last Submission: 16 April 2018

Delivered at: Parramatta

Delivered on: 19 April 2018

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the Respondent: In person

ORDERS WITH RESPECT TO PROPERTY

BY CONSENT:

1. By way of enforcement of orders 11, 12 and 13 made on 22 September 2015:

   (a)Mr Abani as Trustee of Abani Self Managed Super Fund shall do all acts and things necessary to:

   (i)purchase, if permissible to do so pursuant to any relevant Deed and/or State or Commonwealth law, the phone number currently held in the name of Abani Self Managed Superannuation Fund within 14 days for the amount of $500.

   (ii)If not permissible to do so, then Mr Abani as Trustee of Abani Self Managed Super Fund shall within 90 days do all acts and things necessary to sell by public auction on Ebay that phone number and the funds from the sale be deposited into the Super Fund.

   (b)Within 90 days each party shall sign all documents, give all consents and do all acts and things necessary to cause the Trustee(s) of:

   (i)Abani Family Trust; and

   (ii)(omitted) Management Trust

   to exercise its power to vest the discretionary trust (if any) prior to the vesting date set out in the Trust Deed.

   (c)The parties shall, on Friday 20 April 2018 or at such other dates as agreed but within 90 days of the date of these Orders, attend upon the offices of (omitted) Accountants located at (omitted) for the purpose of providing instructions to that firm such that (omitted) Accountants will prepare all documents necessary to cause Abani Self Managed Superannuation Fund to be liquidated in accordance with order 11 made 22 September 2015.

   (d)The parties shall, on Friday 20 April 2018 or at such other dates as agreed but within 90 days of the date of these Orders, attend upon the offices of (omitted) Accountants located at (omitted) for the purpose of providing instructions to that firm such that (omitted) Accountants will prepare all documents necessary to cause the Abani Family Trust to be liquidated in accordance with order 12 made 22 September 2015.

   (e)The parties shall, on Friday 20 April 2018 or at such other dates as agreed but within 90 days of the date of these Orders, attend upon the offices of (omitted) Accountants located at (omitted), for the purpose of providing instructions to that firm such that (omitted) Accountants will prepare all documents necessary to cause the (omitted) Trust to be liquidated in accordance with order 13 made 22 September 2015.

   (f)Within 90 days Ms Abani shall do all acts and things necessary to serve on Mr Abani all documents requiring his signature pursuant to orders 11, 12 and 13 made on 22 September 2015.

2. That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (14) days of being requested to do so then the Registrar of the Federal Circuit Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

THE COURT NOTES THAT:

A.Mr Abani will not be seeking any (re)payment from the Abani Self Managed Superannuation Fund in respect of the lease agreement between himself and the fund dated 15 October 2004.

ORDERS WITH RESPECT TO PARENTING:

1. That the mother shall have sole parental responsibility in respect of all major long-term issues relating to medical treatment for the children [V] born (omitted) 2003, [W] born (omitted) 2005, [X] born (omitted) 2007, [Y] born (omitted) 2009 and [Z] born (omitted) 2010.

2. That prior to making any significant decision about any issue of major long-term issues relating to medical treatment for the children, the mother shall use her best endeavours to advise the father in writing of the decision intended to be made, and the father is entitled to provide within two days of the mother advising the father in writing of the intended decision to be made, a response to that communication contained in one email or SMS text message only, and the mother shall consider the father’s response in making her final decision and shall notify the father of this decision as soon as reasonably practicable of the decision being made.

3. That the mother shall notify the father of any medical specialist or other treater appointments for the children (except with a general practitioner) within 48 hours of making any such appointment and the father shall be at liberty to attend such appointments.

4. That the parties use their best endeavours to answer each other’s texts and emails within two days of receiving same.

5. That the parties ensure that they are both listed as the first two emergency contacts with each of the children’s schools.

6. That the parties use their best endeavours to ensure that any school notes which are sent home with any of the children are forwarded to the other parent by message or email.

7. That the parties use their best endeavours to ensure that they keep each other informed of any extra-curricular activities the children might from time to time attend.

8. That the parties use their best endeavours to ensure that they keep each other informed of any birthday or other parties or family/friend functions the children have been invited to during the time the children are with the other parent.

9. Remove all outstanding issues from the list of cases awaiting finalisation.

THE COURT NOTES THAT:

A.The parties are in agreement for the father to do all things necessary to cause the child [W] to be enrolled in and attend Neuro Feedback at the ADD/ADHD treatment centre as recommended by the ADD/ADHD treatment centre, on the conditions that:

(b)the father will meet all costs and pay all fees associated with such treatment as and when they fall due; and

(c)the father will take the child to and from all such treatment sessions.

B.The mother consents to the child [W] being enrolled in and to attending Vision Therapy at (omitted) not less than one day per week as recommended by Vision Therapy on the condition that the father will meet all costs and pay all fees associated with such treatment as and when they fall due.

IT IS NOTED that publication of this judgment under the pseudonym Abani & Abani (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC4493 of 2012

MS ABANI

Applicant

And

MR ABANI

Respondent

REASONS FOR JUDGMENT

1. On 22 September 2015 the parties entered into final property orders. As at the date of the hearing on 16 April 2018, a number of outstanding issues remained in respect of those orders. The wife’s application sought enforcement of the orders and ultimately the parties agreed to a number of orders in that respect. Those orders are as made herein.

2. On 16 April 2018 the Court also heard competing applications with respect to a number of parenting orders, albeit, final parenting orders were made by consent on 18 June 2014. While neither party raised any Rice & Asplund issue, the Court was ultimately satisfied that given the significant breakdown in communication between the parties that had arisen as a result of a medical diagnosis for one of the parties children and their inability to come to an agreement about appropriate treatment, that there were sufficiently changed circumstances to warrant a limited re-opening of the parenting dispute.

3. Although the parties were both self-represented, they both gave evidence and made submissions in respect of the orders they sought. While there was significant agreement between them in respect of the orders sought by the father, there was significant disagreement in respect of the order which the mother sought – namely an order that she have sole parental responsibility with respect to any long-term medical issues for the children.

4. The parties have five children together:

   a)[V] born (omitted) 2003;

   b)[W] born (omitted) 2005;

   c)[X] born (omitted) 2007;

   d)[Y] born (omitted) 2009; and

   e)[Z] born (omitted) 2010.

5. The Court has read the lengthy affidavits of both parties, and accepts the evidence of each. Where the two are in conflict, the Court accepts the evidence of the mother. After observing her in cross-examination, the Court formed the view that she had a better recollection of events than the father and that she gave a more fulsome account of relevant events. Both parties however, the Court finds, were genuine in their attempts to recall relevant events. The Court also formed the view that they both found the final hearing difficult. The parties both clearly love their children and wish the best for them.

6. The Court finds that an order for the mother to have sole parental responsibility for the children with respect to major long-term medical issues is an order that is in the children’s best interest for the following reasons:

   a)There is a significant inability by the parties to communicate in an effective and timely manner in relation to the treatment recommended by medical practitioners in respect of [W]’s diagnosis of ADHD;

   b)The children are primarily in the mother’s care;

   c)The mother is the person who attends to most of the children’s medical appointments – not only by making the appointments and follow up appointments but also by ensuring that the children are taken to such appointments whether during periods when they are living with her or spending time with the father;

   d)The father from time to time has not been able to attend important medical appointments for the child [W] due to his work commitments. While this is understandable and the Court is not critical of the father for this, it was important for the father to attend such appointments given that the parties were subject to an order for equal shared parental responsibility and the making of joint decisions in respect of [W]’s long term care was made more difficult by the father’s non-attendance;

   e)The father is of the strong belief that [W] should be treated for his ADHD with alternative therapy. Despite strong medical recommendations for the child to be medicated, the father opposed such treatment. [W] ultimately commenced taking the medication and there has been a marked improvement in his learning and concentration. The Court understands that the father remains reluctant to concede that the child’s improvements are due to the medication but rather assigns them to tutoring which the child received. The only expert evidence in the proceedings were reports annexed to the mother’s affidavit and a further report tendered, which indicate that the child has improved since being on the medication;

   f)While the mother is not opposed to the alternative therapy as proposed by the father, she has concerns, given that the father is some $43,000 in arrears in child support and that he has not attended all of [W]’s medical appointments, that he will not be able to fund the cost of such treatment or ensure that [W] is taken to all such therapy. The father assures the Court that he is able to do both. During the final hearing the mother agreed to [W] attending such therapy if the father paid for it and took [W] to all of the appointments; and

   g)The father has demonstrated a ‘head in the sand’ approach to a number of the outstanding property matters and the Court has formed the view that this is the father’s modus operandi in respect of difficult decisions, same carrying over into the parenting aspects of the parties’ lives.

7. While the mother will be given sole parental responsibility in respect of major long-term medical decisions concerning the children, it is important for the father to remain informed and involved in any treatment the children are to receive. For this reason, the mother will have to make a genuine attempt to consult the father about any such decisions but the decision will ultimately be hers to make.

8. It may be that with some assistance and after the outstanding property orders are finalised, the parties will again find a way to speak to each other more effectively and learn to co-operate. The mother has indicated that she wants the father to be involved, but that it has just been too difficult to have the parties come to an agreement about some things. The Court accepts the mother’s evidence in this regard.

9. The father has sought a number of what are best called ‘machinery provisions orders’ in respect of the parties’ co-parenting. The fact that the father is seeking such orders is indicative of the parents’ difficulties in communication and co-operation.

10. Not all of the orders the father seeks are appropriate and in the Court’s view seek to place too many demands on the mother in order to accommodate or suit the father. An example of this is the order the father seeks that the mother be restricted in her choice of who is to look after the children during the time they are living with her if she is unable to do so personally for whatever reason. The father insists that this should be him and then if the father is not available that she “then… has the right to choose a babysitter.” Such an order will not be made. 

11. The father has the benefit of an order of equal shared parental responsibility and will remain to have the benefit of such an order with the exclusion of major long-term medical issues. He therefore has the right to seek certain information from the children’s schools by way of example, and can if he so chooses, inform himself of matters pertaining to the children.

12. For all of those reasons, orders will be made as set out at the forefront.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 19 April 2018