Amine & Magdy
[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:
The proceedings listed for determination on an interim basis relate to the parties’ child X born in 2014. X is seven years of age and currently in Year 2 at school.
The current spend time orders were made by consent on 5 May 2021, and provide for X to live with the respondent mother (“the mother”) and spend time with the applicant father (“the father”) each alternate weekend from after school Friday to before school Monday. The parties reached agreement that an order should be made that X spend half of each school holidays with each parent. The primary issue for determination on an interim basis is what the time arrangement should be for X with her father during school terms.
The mother and the Independent Children’s Lawyer (“ICL”) agreed that there should be an increase in X’s time with her father, such that each alternate weekend during school terms, X would spend time with her father from after school Friday until before school Tuesday.
The father sought alternative orders. On his primary application, he sought a week-about basis with each parent and if the Court determined that was not appropriate, then orders for a five night arrangement, where it was sought that X spend time each alternate weekend from after school Friday until before school Wednesday.
Each of the mother and father also sought orders for parental responsibility.
The issues as identified by the parties are whether X spends four, five or seven nights a fortnight with her father during school terms. Irrespective of what the parties might contend should be the appropriate arrangements, the Court is bound to come to its own assessment as to what is in the best interests of the child and is not bound by the proposals of the parties, provided that they are afforded procedural fairness (see U v U (2002) 211 CLR 238 at [80])
The father relied upon:
(1)A Case Outline filed 11 February 2022;
(2)Amended Initiating Application filed 15 July 2021;
(3)Notice of child abuse, family violence or risk filed 29 March 2021;
(4)Affidavit of Ms B filed 29 March 2021;
(5)Affidavit of Ms C filed 6 August 2021;
(6)Affidavit of Mr D filed 6 August 2021; and
(7)Affidavit of Mr Amine filed 4 February 2022.
The mother relied upon:
(1)A Case Outline filed 11 February 2021;
(2)Response to Initiating Application filed 28 April 2021;
(3)Notice of child abuse, family violence or risk filed 28 April 2021;
(4)Affidavit of Ms E filed 19 August 2021; and
(5)Affidavit of Ms Magdy filed 4 February 2022.
The ICL relied upon a Case Outline filed 14 February 2021 and the Child Inclusive Conference Memorandum dated 31 August 2021 (“the Memorandum”).
Each party also relied upon documents contained in a tender bundle. Reference was made during submissions to only some of the documents of which a few were tendered and became exhibits in the proceedings.
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.
The father denies in their entirety all of the mother’s allegations. Curiously, whilst maintaining that the mother is a compulsive liar and extremely manipulative, he indicated to the Family Consultant that the parties have an ability to co-parent and have done so in the past.
On one view, the allegations marshalled by each of the parties against the other are inconsistent with the positions that they each advance in relation to the future arrangements for X.
The Memorandum assisted the Court. It identified at paragraph 54 the following:
54. This is a matter where it is suggested from the accounts of the parents and the children that Z and X have been exposed to, in the very least, parental conflict and possibly family violence and parental mental health difficulties. The impact of this exposure on the emotional and behavioural development of children/teenagers is detrimental. It is imperative that the parents do all they can to shield Z and X (and Y) from further exposure to parental conflict and/or family violence or denigration either to, or in the presence of, the children. This can impact their sense of self or identity and can cause them to withdraw from one parent, as alleged has occurred with Y and Z.
Both parties through their respective legal representatives agreed that at the current time the co-parenting relationship was extremely poor.
One matter the parties seem to agree upon is that X has attention deficit hyperactivity disorder (“ADHD”), that she had struggled at school with writing, reading and maths, but that at present her ADHD appears well managed and she is not taking any medication. They also agree that she is doing well at school and enjoys her time with her father.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
Notwithstanding such indisputable proposition, each counsel put various submissions to me to the effect that I should draw some conclusion from inconsistent assertions made by one or other party, that would permit me to presumably reach some conclusion on the disputed allegations. I am clearly unable to do so and will not do so. These are matters for a final hearing. The best I can do is resolve the matter on the undisputed facts and/or objective material.
However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
[122]In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed at [50]:
50.It is to be observed that that reference in SS v AH to "probabilities" does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those "possibilities".
Parenting proceedings are governed by Part VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
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.
In determining what is in the best interests of the child, I will now consider the additional considerations as far as they are relevant.
The father placed significant weight on what he said was X’s view that she wanted to spend more time with her father. I observe that the Family Consultant recorded at paragraph 59:
59.While it was clear from X that she loves both parents, and misses her father and her home, X is at an age where she does not have the emotional or intellectual capacity to understand the reality and long term implications of a 10 day and nine day arrangement as she has suggested. It would seem that X would like the situation to be fair, where she has increased time with her father. It is unclear if this has either directly or indirectly influenced by Mr Amine or if this is X's lived experience and genuine wish.
Given this observation and her age, I place little weight on X’s views.
I accept that X has a relationship with each of her parents, and that a significant and important relationship for X is her relationship with her siblings.
The evidence does not permit me to make any findings about the extent to which each of the child’s parents has taken or failed to take an opportunity to participate in making decisions about long-term issues.
It is not intended by either party’s order that there would be a separation of the child from either of the child’s parents or the child’s siblings.
There is no practical difficulty or expense to the child spending time with the other parent.
Of considerable focus for the purposes of these interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the parents to place the child’s needs above their own, the attitudes of the parents to the child and the responsibilities of parenthood.
I have significant concerns about the insight of each of the parents. The Family Consultant made a recommendation in August 2021, that they engage in a Keeping Contact program and for X to undertake the Anchor Program. It is clearly apparent from the inquiries made by the Court, that neither party has thought it important enough to enrol themselves and the child in such a program. It demonstrates a lack of insight on the part of each of the child’s parents to see the benefits that they and X would obtain from engaging in such programs. The fact that each readily agreed to undertake and participate in such a program only upon prompting by the Court demonstrates the extent to which they have lost focus and perhaps the extent to which the conflict has distracted them from the best interests of their child. I also have significant concerns about each party’s involvement, of not just the elder children but X, in the conflict and attempts to persuade or dissuade the children from thinking in a particular way.
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.
I find that these parties do not have a sufficient capacity to make an equal time arrangement work. The level of conflict and distrust is inconsistent with the requisite foundations to the making of an equal time order.
The father’s alternative position was a five night arrangement, noting the mother and the ICL proposed a four night arrangement. On one view, it is not a justiciable dispute. As stated earlier, the Court is not bound by either party’s applications.
The Court is of the view that there should be an increase in X’s time with her father to four nights, but not five nights per fortnight. I place weight on what the Family Consultant said at paragraph 60 of the Memorandum, to which I have already referred. X’s life at present seems settled. I have no expert evidence before me as to whether a move to five nights would be beneficial or disruptive at this time. I have no confidence that if it were disruptive, the parties have the necessary insight and capacity to work collaboratively to address any problems that might arise and consequentially act in X’s best interests. In light of the high conflict, my expressed concerns about the insight of both parties, in particular the father, and in the absence of such expert evidence, I am not prepared to take a risk with X’s care at this stage.
The parties need to undertake the therapeutic work identified by the Family Consultant as a precursor to further increasing the father’s time with X. Any further increase should await a final hearing, when evidence can be tested through cross-examination and there is more comprehensive expert evidence.
For the above reasons, I decline to make the orders as sought by the father and will make the time orders as sought by the mother and the ICL.
I otherwise dismiss each party’s interim applications.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 February 2022
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