Ansari & Nawaz
[2022] FedCFamC1F 644
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ansari & Nawaz [2022] FedCFamC1F 644
File number(s): PAC 5784 of 2019 Judgment of: ALTOBELLI J Date of judgment: 10 August 2022 Catchwords: FAMILY LAW – PARENTING – Undefended – Final parenting orders made by consent as between mother and Independent Children’s Lawyer. Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 10 August 2022 Place: Sydney Solicitor for the Applicant: Ms Farah, Farah Lawyers, Solicitors & Barristers The Respondent: No appearance Solicitor for the Independent Children's Lawyer: Ms Court, John Spence & Associates ORDERS
PAC 5784 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANSARI
Applicant
AND: MR NAWAZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
10 AUGUST 2022
THE COURT NOTES THAT:
A.There was no appearance by the Respondent when the matter was called at 10.06am today.
B.There was no appearance by the father on 18 July 2022.
C.At 11.20am today, immediately before the Court made orders, there was neither an appearance by the father nor was there any communication from him or on his behalf explaining his absence.
THE COURT ORDERS THAT:
1.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), orders are made by consent as between the Applicant and the Independent Children’s Lawyer, and on an undefended basis in relation to the Respondent, in accordance with the document marked “A” dated this day and attached hereto.
2.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
3.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.
4.The Independent Children’s Lawyer is directed to meet with the children as soon as is practicable to explain these orders to them.
5.My associate is directed to send a copy of these orders to the Respondent at his last known email address with reference to the relevant rule that might enable him to bring proceedings before the Court.
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 Ansari & Nawaz has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
I have made consent orders this morning as between Ms Ansari (“the mother”) and the Independent Children's Lawyer, but on an undefended basis in relation to Mr Nawaz (“the father”). The matter relates to three children: X, who is 14, Y, who is 13, and Z, who is 9 (“the children”). The mother is the applicant. She is 34 years old. The father is the respondent. He is 38 years old. Notwithstanding the terms of an order that was made by Judge Myers on 19 December 2019 (an order that said that the children should live with the mother), in fact the children have been living with the father for some time and have not seen the mother since 2021.
The matter is a long running dispute. It has multiple layers of complexity. Historically, there have been concerns about the welfare of the children in the care of both parents. The family is known to police and the Department of Communities and Justice. There are very serious allegations of violence made against the father by the mother. There has been an Apprehended Domestic Violence Order, which is still current. One of the particularly difficult aspects of this case has been the father’s selective attendance. He was not here this morning. He was not here on the previous occasion. It was a very challenging matter to manage from that perspective. The matter had, in fact, been set down for hearing this week.
The evidence before the Court suggests that the father is in Adelaide and is facing what appears to be criminal charges. It is possible that the children are with him. It is unknown precisely for how long he has been in Adelaide and but for the diligent and, perhaps, creative inquiries of the solicitor for the mother, the Court would not have been appraised of the fact that he was there at all. The father appeared by telephone for the case management hearing on 4 July 2022. On that occasion, when the father did appear and the mother did not appear, the father told me that he wanted the children to spend time with the mother, and the order that I have made is, in fact, consistent with that.
The evidence, by way of the Child and Family Meeting Memorandum dated 6 October 2020 and the Family Report dated 14 July 2021, paints a picture of children who once had a good relationship with their mother no longer having any relationship with their mother and, it would seem, stridently resisting any contact with her. It is possible, the Court acknowledges, that that continues today. Nonetheless, the order that I have made for the mother to spend time with the children is a very modest one. It is every Friday from 5pm until 8pm at a public place, with changeover at a McDonald’s store close to their respective homes. The orders will be explained to the children by the Independent Children's Lawyer so it is possible that, as modest as the order is, it could, in fact, be implemented.
The proceedings have been very difficult for the mother. This much is apparent from her affidavit that was filed on 5 August 2022. She has had to readjust her expectations to what the Court considers to be quite a realistic point—that is, at least for the time being, any time that she spends with the children in a place that is comfortable to them creates the foundation for resuming a relationship with them. It is this Court’s experience that, in any event, as the children grow older, they will want to know more about the mother and they will seek her out.
In the circumstances, I am satisfied, firstly, that a final order should be made, rather than an interim order. The mother wants finality. That is understandable, given the history of the matter. It is probably in the public interest that these proceedings be finalised, recognising, of course, the possibility of future enforcement proceedings. An interim order may have given the father an opportunity to participate, but his track record is such that the Court could have no confidence. There are many cases that need this Court’s time and, in the circumstances, a final order was indicated.
The great irony in this case is that there is probably (and this is merely an impression) far greater risk to these children in the father’s care than in the mother’s care, but it is possible that he has so influenced their views about the mother that, even accepting that the risk is greater in his care, it does not get around the reality that these children do not want to spend time with the mother. In the circumstances, the orders made are the best that the Court can do and reflect the realistic efforts and aspirations of both the mother and the Independent Children's Lawyer. I am, therefore, satisfied that these orders are in the best interest of these children.
I will direct that these orders be sent by my associate to the father at his last known his email address, with reference to the relevant rule that might enable him to bring the proceedings back before the Court.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 10 August 2022. Associate:
Dated: 10 August 2022
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