Alam & Sayid

Case [2021] FamCA 564

FAMILY COURT OF AUSTRALIA

Alam & Sayid [2021] FamCA 564

File number(s): SYC 3215 of 2015
Judgment of: HARPER J
Date of judgment: 3 August 2021
Catchwords:

FAMILY LAW – PARENTING – Where the mother and independent children’s lawyer seek that the current parenting orders continue – Where the father seeks a reversal of the current parenting arrangements to see the children live with him and spend time with the mother – Where both parties question the credibility of the other – Where the father alleges a serious violent incident occurred between the mother and maternal grandfather and risk of sexual abuse between children in the mother’s home – Where evidence equivocal – Where no unacceptable risk found – where evidence discloses likelihood of excessive chastisement by the mother in the past – Where the children indicate a preference to remain in the primary care of the mother – Where both parties have parenting deficits.

FAMILY LAW – PROCEDURAL – Leave to reopen – Where the mother fell pregnant to her new husband between the time judgment was reserved and when it was delivered – Where there was no dispute about the fact of the pregnancy – Where the father applied for leave to reopen to lead evidence of the pregnancy – Where this was considered a material fact which could affect the outcome – Leave granted.

FAMILY LAW – EVIDENCE – EXPERTS – Parenting proceedings – Where Evidence Act, 1995, s 79 does not apply by reason of s 69ZT(1) of the Family Law Act, 1975 – Where expert evidence of family report admitted – Where father challenges the weight to be attributed the report – Whether weight of expert report should assessed in part by reference to principles which govern admissibility of expert evidence where s 79 applies – Where father contended the expert did not expose his reasoning, constructed his own facts – Where held the expert’s opinions were inferences drawn from communicable data and he drew inferences from his observations of both parents.

FAMILY LAW – EVIDENCE – INFERENCES – Discussion of principles of inferential reasoning in parenting maters – Rule in Jones v Dunkel – Where other principles of inferential reasoning applicable – Disclosures by children to one parent where high parental conflict – Where father contends the mother failed to call maternal grandfather so that inferences should be drawn in his favour.

Legislation:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Evidence Act 1995 (Cth) ss 55, 79, 128, 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 61DA, 64B, 65AA, 65DAA, 65DAB, 65ZN, 65ZT, 102NA

Family Law Rules 2004 (Cth) rr 15.63, 416.63

Cross on Evidence, 12th Australian edition (J.D. Heydon, 2020, Sydney: Butterworths)
Cases cited:

Adamson & Adamson (2015) 51 FamLR 626

Alam & Sayid and Anor [2016] FamCA 580

Amador & Amador (2009) 43 Fam LR 268

ASIC v Hellicar (2012) 247 CLR 345

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Blatch v Archer (1774) 1…

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Details
AGLC
Alam & Sayid [2021] FamCA 564
Case
[2021] FamCA 564
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders for three children, B, C, and D. The mother, Ms Alam, and the independent children's lawyer sought to continue the existing parenting arrangements. The father, Mr Sayid, sought a reversal of these arrangements, proposing that the children live with him and spend time with the mother. Both parents questioned each other's credibility. The father alleged a serious violent incident between the mother and the maternal grandfather, and a risk of sexual abuse within the mother's home. The court found the evidence regarding these allegations to be equivocal and determined there was no unacceptable risk. However, the court did find evidence disclosing a likelihood of excessive chastisement by the mother in the past. The children expressed a preference to remain with the mother, and the court acknowledged that both parents had parenting deficits.

The court was required to determine several legal issues. Firstly, it had to consider the father's application for leave to reopen the evidence, made after the final hearing but before judgment was delivered, concerning the mother's pregnancy with a new partner. Secondly, the court needed to assess the weight to be attributed to the expert evidence of a family report, particularly in light of the father's challenge that the expert had not adequately exposed their reasoning and had constructed their own facts. Thirdly, the court was to consider principles of inferential reasoning, including the rule in *Jones v Dunkel*, in relation to disclosures made by children in high-conflict parental situations and the father's contention that inferences should be drawn in his favour due to the mother's failure to call the maternal grandfather as a witness.

Harper J granted the father leave to reopen the evidence, finding the mother's pregnancy to be a material fact that could affect the outcome of the parenting orders. Regarding the expert evidence, the court held that the expert's opinions were inferences drawn from communicable data and observations of both parents, and that the weight of the report should be assessed accordingly, even though section 79 of the *Evidence Act 1995* did not strictly apply. The court acknowledged the children's preference to remain with the mother and found that while both parents had exhibited deceitful behaviour, the mother's conduct was more directly related to parenting. Ultimately, the court was satisfied that the orders proposed at the commencement of the reasons should be made, taking into account the best interests of the children, including considerations arising from the Covid-19 pandemic.

The court ordered that the parents have equal shared parental responsibility for the children. The children were to live with the mother and spend time with the father on a specified schedule, including two weekends out of every three during school terms, and defined periods during school holidays and on special occasions. The court also made specific orders regarding the children's schooling and telephone contact between the parents and children. Notably, certain special occasions were designated for the children to be with the mother, with the father's time suspended if necessary.

Orders

Orders of the court

SYC 3215 of 2015

BETWEEN:

MR SAYID

Applicant

AND:

MS ALAM

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

3 AUGUST 2021

THE COURT ORDERS THAT:

Reopen

1. That the applicant father be granted leave to reopen the evidence, in accordance with his application made on 8 December 2020.

Parental responsibility, spend time with, special days, schooling

2. That the parents have equal shared parental responsibility for the children B born … 2010, C born … 2012 and D born … 2016 ("the children").

3. That the children live with the mother.

4. That the children spend time with the father:

(a) During school terms:

(i) for two weekends out of every three, from the end of school on Friday until 9.00 am or the commencement of school on Tuesday;

(ii) On the Monday following the weekend the children have not been with the father, from the end of school on Monday until the commencement of school on Tuesday;

(b) During school holidays as agreed, or failing agreement:

(i) For the first ten days of the autumn, winter and spring school holidays each year, from the end of school on the last day of term until 5.00 pm on the tenth day of the holiday period;

(ii) For the first four weeks of the summer school holidays each year, from the end of school on the last day of terms until 5.00 pm on the 28th day of the holiday period

(c) On special occasions each year as follows:

(i) From 9.00 am on the day of Eid-al-Fitr until 3.00 pm three days later in odd-numbered years;

(ii) From 9.00 am on the ninth day of Thul-Hijjah (the day of Arafat) until 5.00 pm four days later in even-numbered years;

(iii) On Father's Day from 9.00 am until 5.00 pm should the children not otherwise be with the father on that day or at such times as may be agreed between the parties;

(iv) For a period of two hours on each of the children's birthdays and the father's birthday if the children are not otherwise with the father, failing agreement to be from 3pm until 5pm;

5. Notwithstanding other orders, the children will be with the mother (and the father's time with the children will be suspended if necessary) on special occasions each year as follows:

(a) From 9.00 am on the day of Eid-al-Fitr until 3.00 pm three days later in even-numbered years;

(b) From 9.00 am on the ninth day of Thul-Hijjah (the day of Arafat) until 5.00 pm four days later in odd-numbered years;

(c) From 9.00 am on Mother's Day until 9.00 am or the commencement of school on the following day;

(d) For a period of two hours on each of the children's birthdays and the mother's birthday if the children are not otherwise with the mother, failing agreement to be from 3.00 pm until 5.00 pm;

(e) On other occasions as agreed between the parties.

6. That the parents are each permitted to telephone to speak to the children between 5.00 pm and 6.00 pm on any day that the children are in the other parent's care, and the parent with whom the children are spending time will facilitate the children receiving that call.

7. That unless otherwise agreed in writing between the parties, the children are to be enrolled at school as follows:

(a) The children are each to remain enrolled at E School until they complete Year 6;

(b) B and D are to be enrolled at GG School from the commencement of Year 7, and the parties are each to do all things and sign all forms necessary to facilitate this enrolment as soon as possible;

(c) C is to attend HH School from the commencement of Year 7 and the parties are each to do all things and sign all documents necessary to facilitate this enrolment as soon as possible;

Background

Background to the litigation

As will become apparent in the course of these reasons, this case presented issues some complexity and difficulty. The proposals of both parties and the ICL have merit. It should be noted here that when judgment had been drafted, but not delivered, the father applied to reopen the evidence. This application is dealt with later in these reasons. Unfortunately, although the father's application was limited in scope, the consideration of the arguments of all parties and determination of the application had to be undertaken during a period when the resources of the Court have been under great pressure, and as a result delivery of judgment has been delayed.BACKGROUND The father was born in Country TT in 1981 and is 39 years of age. The mother was born in Country R in1990 and is 31 years of age. According to the father he graduated with a Bachelor degree from a university in Sydney on 15 September 2004, and completed a Graduate Diploma conducted by a professional association on 11 August 2006. [2][2] Affidavit of the Father filed 27 April 2020, pg. 4 [16]. The father commenced working at Company UU (now known as Company VV) on 17 September 2007. [3] [3] Ibid, pg. 4 [17]. The mother states that she and the father met in November 2007 when she was 17 years old, and in Year 11 of high school, and the father was 26 years old.[4] [4] Affidavit of the Mother filed 12 May 2020, pg. 2 [4]-[5]. In 2008, members of the mother's family including the paternal grandfather returned to Australia to live for a time. The marriage was arranged shortly after introduction by their families, and in 2009 the parties were married in an Islamic ceremony. They commenced cohabitation thereafter and moved into the father's home at WW Street, Suburb J.[5] [5] Affidavit of the Mother filed 12 May 2020, pg. 3 [8]. The father graduated with a Masters degree from another university in Sydney on 4 May 2009, and ceased his then employment on 13 August 2010.[6] The father deposes that he thereafter accepted a position as at XX Pty Ltd, and was also the sole shareholder and director of Sayid Pty Ltd (formerly known as Sayid & Company Pty Ltd).[7] [6] Affidavit of the Father filed 27 April 2020, pg 4 [17].[7] Ibid, pg 4 [17] & [19]. The father states that in October 2009 the mother travelled to Country TT and Country A on a holiday with her family, which was part of a pattern of such travel which included the children.[8] [8] Ibid, pg 6 [34]. B, the first child of the marriage, was born in 2010. He is currently ten years of age. C was born at 38 weeks in 2012. She is the second child of the marriage, and is presently nine years of age.[9] [9] Affidavit of the Mother filed 12 May 2020, pg 11 [50]. The mother states that when C was six months old, she travelled with B and C to Country A with her family for approximately two months.[10][10] Ibid. D, the third child of the marriage, was born in 2013 and is presently seven years of age. The parties purchased a property at G Street, Suburb H ("G Street") in about April 2013, and the parties moved into the property in September 2013. [11] It became the final matrimonial home.[11] Ibid, pg 4 [17].

Evidence

Evidence Before The Court

There are three children the subject of these proceedings, being B, C,and E. They currently all attend E School at Suburb K, with B in Year 5, C in Year 4 and D in Year 2.The Evidence of the Parties Each parent challenged the credibility of the other. The mother sought to impugn the credit of the father by relying on evidence of occasions in 2006, when he had driven unlicensed and had been quite prepared to lie to the police by giving a false name. She also pointed to the fact that the father, in his financial statement filed in September 2019, had alleged he earned $30 a week when his earnings were approximately $670,000 that year. He was also cross- examined about his dispute with the Australian Taxation Office ("the ATO"). It was suggested to him that he manipulated figures in challenging the claim, which he denied. The father submitted that his untruthful acts were historical and unconnected to the parenting issues before the Court. I agree. In pressing his challenge to the mother's credibility, the father pointed to the events on 26 February 2016, when the mother attempted to leave Australia with the children and forged his signature on a passport application for B. He also questioned her about completing a fraudulent application to finance the purchase of a new car. I granted the mother a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in respect of this evidence. The father submitted that the mother was quite prepared to lie to achieve her own ends. The father submitted, which I accept, that unlike the criticism made of him, the mother's deceitful conduct was directly related to parenting and the children. Neither party impressed me as a reliable witness. Although both conceded to past deceitful behaviour, I do not consider it necessary or helpful to make a general finding of mendacity about either: Carlson & Fluvium [2012] FamCA 32 at [165] to [169]; Adamson & Adamson (2015) 51 FamLR 626 at [90]. The expert evidence of Dr FF includes the opinion that both parents exhibit controlling behaviour and a strong drive to determine parenting outcomes. Having observed both in the witness box, I am satisfied their longstanding conflict and mutual distrust may well have infected the reliability of their recollections and motivated distortions in their testimony.Application to Reopen On 8 December 2020, the father applied to reopen the evidence to include evidence of the fact that the mother, after the final hearing had completed and judgment had been reserved, became pregnant with a further child to Mr PP. The mother and the ICL opposed the application. The parties made extensive written submissions in relation to this application. Intending no disrespect, it is not necessary to discuss these submissions in detail. I will allow the father's application. The additional evidence is very narrow in scope. The fact the mother's fresh pregnancy can hardly be the subject of controversy. It could affect the result, and it is clearly a fact relevant to the final parenting orders, because it will have an impact in the mother’s home, although the extent of the impact cannot now be kown. Having taken the time to assess the possible impact of the reopening on the overall result, I do not accept that it requires, as the mother and the ICL submitted, additional hearing time or any further expert evidence.

Decision

Reasons for decision

This judgment is delivered during a further lockdown in NSW as a result of the Covid-19 pandemic. For this reason, I consider it in the best interests of the children to include orders concerning self-isolation, and other consequences of the pandemic.CONCLUSION For all the foregoing reasons I am satisfied the orders prosed at the commencement of these reasons should be made.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.