Ahsan and Ahsan

[2016] FamCA 596

FAMILY COURT OF AUSTRALIA

AHSAN & AHSAN [2016] FamCA 596

FAMILY LAW – CHILDREN – Interim parenting – Suspension of the father’s time – Appointment of Independent Children’s Lawyer

APPLICANT: Ms Ahsan

RESPONDENT: Mr Ahsan

FILE NUMBER: PAC 2493 of 2016

DATE DELIVERED: 15 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Integrated Law Group

SOLICITOR FOR THE RESPONDENT: Barber Lawyers

Orders

1. The mother is permitted to take the children from Child Dispute Services forthwith.

1. By consent and pending further order, the father shall deliver to the appointed agent of the mother the belongings of the children including but not limited to their school uniforms, school bags, sport uniforms, books, games, toys, bicycles and laptop computers and other winter clothes and personal effects at 7.30pm in front of the main entrance of McDonalds located in Suburb A

2. By consent and pending further order, until 18 July 2016, the father’s telephone contact with the children be limited to one phone call between the hours of 5.30pm and 6.30pm by contacting the mother’s telephone every alternate day and the mother shall use her best endeavours to answer.

THE COURT NOTES

A.     The parties had also sought an order suspending the father’s time with the children until 24 June 2016.  I declined to make such an order.

IT IS ORDERED THAT

1. The father’s time with the children is suspended until 18 July 2016.

2. The proceedings are listed in the Judicial Duty List for an Interim Hearing in relation to the father’s suspension of time with the children at 10am on 18 July 2016, estimated hearing time 1hr.

3. The parties are to file and serve any Affidavits upon which they intend to rely by 8 July 2016.

4. Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the children, B born … 2011, C born … 2008, D born … 2007, E born … 2004 and F born … 2003 (“the children”) are to be independently represented by a lawyer in these proceedings.

1. The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements urgently and before 18 July 2016, to secure appropriate representation for the children’s interests.

1. The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, within 7 days, copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

1. Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he / she considers relevant to the issues before the Court.

1. Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

1. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

1. Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

2. The father is to leave the Court and the Court precincts immediately.

THE COURT NOTES

B.     Justice Hannam will not be hearing the matter on the adjourned date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahsan & Ahsan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2493 of 2016

Ms Ahsan

Applicant

And

Mr Ahsan

Respondent

REASONS FOR JUDGMENT

1. I make a notation that the parties had also sought that I make an order suspending the father’s time with the children until 24 June 2016.  I declined to make such an order and indicate my reasons for doing so. 

2. My reasons for doing so are that yesterday, following an interim parenting application in the matter, the father was directed to deliver the children to the mother for the purposes of giving effect to the interim orders under which the children were to live with the mother, and spend time with the father each alternate weekend.

3. Prior to those orders being made, the children had been living with the mother, and spending time with the father under an informal arrangement between the parties until 29 April 2016, when the father unilaterally ceased making the children available to the mother.  The reasons for the orders made were set out in my ex tempore reasons of decision given yesterday. 

4. One of the matters raised by the father yesterday was his inability to have the children pass into the care of the mother, and he had foreshadowed that there may be some difficulty with that.  Having regard to the ages of the children, who are ranging between five and 12 or 13, it did not appear that, in fact, the children would not pass into the care of the mother, or if that were to occur I had expressed some concerns about the father’s capacity in that regard. 

5. The father’s position has always been, as I understand it, that it does not reflect upon his capacity, but questions should be raised about the children’s resistance and the reason for that.  I was not in a position to deal with that matter yesterday, not that it was raised with that degree of strength, nor am I in a position to deal with that matter today, and in my view, I will be greatly assisted by some expert evidence in that regard. 

6. I am informed, and it is not a matter of dispute between the parties, that on two occasions last night, the father took steps, apparently in accordance with the orders that I made, to deliver the children to the mother at a particular place, but the children did not on either occasion pass into the care of the mother.

7. Today an order was made for the father to deliver the children to Child Dispute Services, which occurred, but apparently there were significant difficulties experienced at Child Dispute Services in having the children pass into the care of the mother.  This is a matter which, in my view, requires the immediate appointment of an independent children’s lawyer, and as I had indicated, it also may be that I would be assisted by some expert opinion in this regard, and it may be that a Children and Parents Issues Assessment, which has been already booked, may be able to assist in that regard.

8. In these circumstances, in my view, it would be inappropriate for the father’s time with the children to be suspended for such a short period of time as the parties had agreed, and in my view, there is a likelihood that the children would not pass back into the care of the mother when the father’s time began again.  We would be in the same position when the time occurred, and then every two weeks thereafter. 

9. The Court is not in a position to be able to offer the service that was offered today, nor would a Court be able to entertain ongoing recovery applications in those circumstances.  When the father says that he wishes to put further material on in relation to the suspension of the orders, I have offered the first available date, and that is 18 July 2016. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 June 2016.

Legal Associate: 

Date:  13 July 2016