Atiyeh and Hakimi

[2010] FamCA 856

FAMILY COURT OF AUSTRALIA

ATIYEH & HAKIMI [2010] FamCA 856

FAMILY LAW – CHILDREN – Best interests – Sole Parental Responsibility – Live with mother and spend time with father – mother has concerns father does not spend anytime with child when she is in his care – father did not make himself available to participate in the preparation of family report – father did not appear at Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Atiyeh

RESPONDENT: Ms Hakimi

FILE NUMBER: SYC 1795 of 2008

DATE DELIVERED: 25 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 25 May 2010

REPRESENTATION

THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: Mr Chan

Orders

1. The mother is to have sole parental responsibility for the child Z, born … December 2004.

2. Whenever the mother needs to make a decision in relation to the child’s long-term future, she is to endeavour to invite the father to give his view in relation to that decision; and if he does give his view, she is to take it into account when making the decision.

3. The child is to spend time with the father during school term, each alternate weekend (to coincide with the times that Z’s brothers, M and H, spend with their fathers) and, in any event, from 6pm on Friday until 6 pm on Sunday.

4. The father is to have telephone contact with Z each Monday and Thursday between the hours of 7.30 pm and 8 pm.

5. The father is to spend time with Z during the second half of the school holidays at the conclusion of the first, second, and third school terms.

6. The child is to spend two weeks with her father during the school holidays at the conclusion of the fourth school term, commencing every second year from 31 December, and every other year, for the last two weeks of that school holiday period.  The first period of time is to commence on 30 December 2010.

7. The child is to spend Father’s Day with the father, from 9 am until 6 pm on that day. 

8. The father is to collect the child from and return her to K for all periods of time that she spends with him.

9. The father is to make the child available to speak to her mother by telephone between the hours of 10.30 am and 11 am on Saturday mornings whilst she is spending weekends with her father during school term.  During school holiday times that she spends with her father, the father is to make the child available to speak to her mother by telephone each Saturday and Wednesday between 10.30 am and 11 am.

10. At all times, when the child spends overnight periods in the father’s care, she is to be provided with her own bedroom.

11. Whenever the child spends time with her father pursuant to these orders, the father is to be predominantly available and spend time with the child.

12. The father is restrained from physically disciplining the child at any time.

13. Unless there is a medical emergency, the father is not to take the child to any medical practitioner, other than Dr T or Dr N at their surgeries. 

14. In the event that Z suffers a medical emergency, the father is to take the child to a hospital, and he is to advise the mother immediately of that emergency. 

15. In the event of the father taking the child for dental attention, he is to advise the mother of the name of the dentist, the address of the practice, and the telephone number of the practice upon his return of the child to the mother.

16. If the mother has reasonable grounds to suspect that the child has been taken for medical treatment by the father, otherwise than in accordance with these orders, or that she has been physically chastised by the father, the mother may suspend all of any part of the contact provided for in these orders between the child and her father. 

17. Until further order the applicant father, MR ATIYEH and / or any other person are restrained from removing the child Z ATIYEH (female) born … December 2004 from the Commonwealth of Australia until further order of this Court.

18. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders

19. The Court requests that until further order the Australian Federal Police place the name of the Z ATIYEH (female) born … December 2004 on the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia for the purpose of preventing removal of the child from the Commonwealth of Australia in breach of these orders.

20. That the Registry manager cause sealed copies of these orders to be served upon the Commissioner of the Australian Federal Police.

21. I direct that a copy of these orders be provided by the mother to the father’s sister.

22. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

23. All outstanding applications are dismissed and these proceedings are to be removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Atiyeh & Hakimi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1795 of 2008

MR ATIYEH

Applicant

And

MS HAKIMI

Respondent

And

REID FAMILY LAWYERS

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Before the Court is the matter of Atiyeh & Hakimi, which relates to the parenting of their daughter, Z, born in December 2004.  The matter has been before the Court since its inception by application lodged by the father on 31 March 2008.  The matter came before me and into my docket on or about 26 May 2009. On that day, orders were made providing for the interim arrangements for the care of the child.  Those orders were made by consent.  The orders included very detailed provision for what was to happen if the child became ill or required medical or dental treatment, and the orders provided for the parties to attend upon Unifam to undertake some courses. 

2. The matter came before me again on 11 December 2009, at which time there was an Independent Children’s Lawyer before the Court.  At that time I determined that there should be a family report prepared in the matter, and on 22 December 2009, I made an order for the preparation of the family report.  That report has now been prepared and released, the report being signed by Ms A on 24 March 2010.  That report reveals that the father did not make himself available to participate in the preparation of the report, and I record that he has not attended at Court today.  At earlier times in the matter before me he has been represented by Hamish Cumming Family Lawyers, however, on 10 March 2010, they filed a notice of ceasing to act.

3. Today, I have had the benefit of evidence from the family consultant, I have had the benefit of input from the independent children’s lawyer, and I’ve had the benefit of further information provided to me by the mother.  The father has obviously determined that he will not participate further in these proceedings, and, therefore, the proceedings are brought to a conclusion with the mother being the only parent seeking orders.  There are certain aspects of the case which warrant a change to the orders made in May of 2009.  The mother reports to me that the father will not communicate with her, that the child has advised her from time to time on return from spending time with her father that she has been taken for medical treatment.  Inquiries reveal that she has not been taken to either of the doctors referred to in the specific orders of the court. 

4. The mother continues to have a line of communication through the father’s sister, D.  The mother has raised concerns about the father spending time with the child during the ordered times for the child to spend time with her father.  The mother has a concern that the child may be left to spend time with the father’s family, rather than interacting with the father, which is the principle aim of the orders of the court.  She therefore seeks orders in relation to the father predominantly being available to spend time with the child during the time that the child is in his care. 

5. Provision has been made in the orders that I propose to make for telephone contact, Father’s Day time, time for the child to spend with her father during school term and during school holidays.  The mother has two other children who spend time with their fathers, and she seeks that the time that the child spends with her father is coordinated with her other children’s time with their fathers.  Much earlier in the proceedings orders were made preventing the child from being taken from Australia.  Orders of that nature are appropriate in this case, and I propose to make an order accordingly.  As a consequence, I make the orders as contained in the orders recited onto the record today.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  5 July 2010