Amine & Magdy

Case [2022] FedCFamC1F 77

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Amine & Magdy [2022] FedCFamC1F 77

File number(s): SYC 2226 of 2021
Judgment of: SCHONELL J
Date of judgment: 18 February 2022
Catchwords: FAMILY LAW – CHILDREN – Interim orders – Where the father sought equal time with the child or in the alternative a five night arrangement – Where the mother and ICL agreed to increased time with the father through a four night arrangement – Consideration of the best interests of the child – Consideration of allegations of risk and poor co-parenting relationship – Where it was found that the parties have an insufficient capacity to make an equal time arrangement work – Orders made for a four night arrangement.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZL
Cases cited:

Adamson & Adamson [2018] FamCA 523

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

U v U (2002) 211 CLR 238; [2002] HCA 36

Division: Division 1 First Instance
Number of paragraphs: 62
Date of hearing: 15 February 2022
Place: Sydney
Counsel for the Applicant: Ms Cantrall
Solicitor for the Applicant: Croydon Legal & Conveyancing
Solicitor for the Respondent: Armstrong Legal
Counsel for the Independent Children's Lawyer: Ms Snelling
Solicitor for the Independent Children's Lawyer: John Spence & Associates

ORDERS

SYC 2226 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR AMINE

Applicant
AND:

MS MAGDY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.Order 5(d) made 5 May 2021 be discharged, and in lieu thereof, there be inserted the words “from 25 February 2022 from the conclusion of school Friday (or 3.00 pm) until the commencement of school Tuesday (or 9.00 am) and each alternate week thereafter during school terms”.

2.That all outstanding interim applications be dismissed.

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 Amine & Magdy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

  1. The proceedings listed…

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Amine & Magdy [2022] FedCFamC1F 77
Case
[2022] FedCFamC1F 77
Decision Date

CaseChat Overview and Summary

In the matter of Amine and Magdy, the Family Court was tasked with determining the best arrangements for the care and custody of the three children born of the relationship. The mother and father were in dispute regarding the date of their separation, which was ultimately deemed irrelevant for the purposes of the application. The court was required to decide on the issue of parental responsibility and the allocation of time with the children, amidst serious allegations of family violence and mental health issues from both parties. The court had to balance the primary consideration of the benefit to the child of having a meaningful relationship with both parents against the need to protect the child from any potential risk or harm.

The court considered the serious allegations of family violence made by the mother, as well as the father's allegations of mental health issues and manipulation by the mother. The Family Consultant's observations and recommendations were also taken into account. The court found that an equal shared parental responsibility arrangement was not suitable due to the extremely poor co-parenting relationship and high levels of distrust between the parties. The court also noted concerns about the father's insight in seeking certain orders and his characterisation of the mother as a compulsive liar and manipulative. The court was unable to make an order for sole parental responsibility to the mother due to insufficient evidence.

The court determined that the best interests of the child required a cautious approach, balancing the need to protect the child from risk against the desire for an increased relationship with the father. The court decided on specific time arrangements for the children, taking into account the allegations of risk and the benefit to the child of having a meaningful relationship with both parents. The court's decision was made in accordance with the guidelines set out in Goode & Goode and considered the primary and additional considerations outlined in the Family Law Act.

The court's final orders addressed the issues of risk and balanced the parties' desire for an increased relationship between the child and the father. The orders took into account the allegations of family violence, mental health issues, and the need to protect the child's emotional and physical safety. The court also considered the importance of the child having a meaningful relationship with both parents, while giving greater weight to the need to protect the child from any potential risk or harm.

Orders

Orders of the court

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Background

Background to the litigation

The Court has read and considered all of this material. BACKGROUND FACTS The parties were married in 2002, and separated according to the mother on 25 November 2018 or according to the father on 15 September 2019. For the purposes of this application, it is unnecessary to resolve the dispute as to the date of separation. The parties are the parents of three children: Y born in 2002, Z born in 2004 and X. The two eldest children are over the age of 18. All three children reside with their mother. The father maintains that following separation he and the mother maintained a good parenting relationship, that the younger two children visited and stayed with him over every weekend from Friday after school to Sunday evening, and that they spent half the school holidays with him. He was also involved in taking the children to school. He contends that this all changed in around February or March 2021, when according to him, he became aware that the mother was influencing the second oldest daughter Z. The father then made an application to the Court on 29 March 2021. Orders made on 5 May 2021 provided for Z to spend time with the father in accordance with her wishes and for X to spend time on an alternate weekend arrangement. Orders made on 7 December 2021 provided for time over the then forthcoming Christmas school holidays. The parties are at issue about many significant facts arising out of their relationship, including the actual involvement of each parent in the care of the children during the course of the relationship. There are allegations of significant family violence recorded in the affidavits, recounted to the Family Consultant and noted in the Memorandum. The Memorandum recounts at paragraphs 10–11:10.Ms Magdy claimed that Mr Amine, and his family, perpetrated significant family violence that impacted her mental health. She claimed that she was physically (punch, kick, choke), verbally, sexually, financially (not named on any jointly owned assets), psychologically abused (frequent threats to kill) and coercively controlled (what she wore, who she saw, attending university).11.Ms Magdy claimed Y grew more interdependent Mr Amine became verbally, physically, psychologically abusive and controlling towards Y and it had started with Z. She alleged that Mr Amine told Y that her brother wanted her killed because she was bringing shame on the family.12.Mr Amine maintained that Ms Magdy is a compulsive liar and extremely manipulative and that she wrote him a letter at separation where she indicates he was not at fault for the separation. The allegations of the mother are serious and include allegations of drug use by the father, including reports that the father on one occasion offered Z a cigarette and marijuana, which she smoked with him. The father alleges that the mother has attempted to involve the children in the dispute, that she has attempted to distance the children from him, that she has undermined his good pre-separation relationship with the children, that her actions are irrational and that she suffers from mental health issues, which impact on her parenting.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I also have concerns about the father’s insight and in particular, the applications that he brings before the Court. The father filed an Amended Initiating Application on 15 July 2021, and in such application sought both interim and final orders that would have seen the child placed in his primary care and spend supervised time with the mother. The interim and final orders also sought alternative propositions that the child live with each party on an alternate week basis. These are interim proceedings and I am unable to make findings about these matters, but I am concerned about the father’s insight in seeking such irreconcilable orders. Likewise, I am concerned about the father’s insight in prosecuting, even on an interim basis, an application for an equal time arrangement, in circumstances where he readily admitted through his counsel that the parties have a poor co-parenting relationship and he regards the mother to be a compulsive liar and manipulative. In his affidavit, at paragraph 56, he said “I do wish for the children to have an ongoing relationship with their mother but not if she is engaged in conduct which is detrimental to their health and well-being”. These matters raise concerns about his insight.CONCLUSION I turn now to consider the issues of parental responsibility and time orders. The father sought orders for equal shared parental responsibility. The mother sought an order for sole parental responsibility. No submission was made about the appropriateness of such an order. The Family Consultant, at paragraph 60, recorded as follows albeit within the context of an equal time arrangement: 60.At this stage, given the extremely poor co-parenting relationship an equal shared care arrangement would not be recommended. For this to function positively, parents require an increased degree of communication. It may be, that with further therapeutic work (parenting orders program) and further information gathered regarding the concerns raised by both parents that X's time with Mr Amine could increase to substantial and significant time, including time midweek overnights, weekends and shared school holidays. This long-term arrangement would support meaningful arrangements with both parents and sustain X's relationship with her siblings. However, if the Court receives evidence that supports Ms Magdy and Z's allegations regarding significant family violence or Mr Amine's allegations of Ms Magdy's serious mental health issues, then perhaps the individual parent's proposals would need to be considered. In this matter given the allegations of risk, the extremely poor co-parenting relationship, the high level of distrust, and the father’s assertions to the Family Consultant that the mother is a compulsive liar and extremely manipulative, I find that it is not in the best interests of the child to make an order for equal shared parental responsibility. In those circumstances, the mandate in s 65DAA is addressed. Similarly, in the absence of submissions and sufficient evidence, I am unable to conclude that an order for sole parental responsibility to the mother is appropriate.

Ratio Decidendi

Legal Principle Established

The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.PRIMARY AND ADDITIONAL CONSIDERATIONS In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “… is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties consider it important that the child have a meaningful relationship with the other parent. They just differ as to the way it can occur. As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents. I place considerable weight on the observations of the Family Consultant as recorded in the Memorandum, where she recorded at paragraphs 56–58:56.If Mr Amine’s proposal was implemented and Ms Magdy and Z’s allegations regarding Mr Amine’s behaviours were found to be accurate, then this could place the emotional and physical safety of X and Ms Magdy at risk, particularly given Mr Amine’s adamant denial, which may indicate a lack of insight. It could also impact X’s relationship with her siblings and mother, due to spending increased time away from them or potentially being exposed to alleged denigration.57.If Ms Magdy’s proposal was implemented and Mr Amine’s concerns regarding Ms Magdy’s mental health are found to be accurate, then this could place X’s physical and emotional wellbeing could be jeopardised and also impact her long-term relationship with Mr Amine, as he alleged occurred with the older daughters.58.While children should generally be provided with the opportunity to have a relationship with both parents, provided it is safe to do so, given Z’s age, her wishes should be respected, which both parents seem to agree on. Z’s soft and considerate disposition indicates that she may be open to establishing a relationship with her father in future. Z’s mental health and emotional safety needs to be prioritised and it is important that Z remains engaged wither her therapeutic supports. I accept that I cannot ignore the allegations of risk. There is clearly a risk. I need to act cautiously, and that orders need to be made to address the issues of risk that have been identified above balanced against both parties’ desire to see an increase in X’s time with her father. The orders I propose address that balance.