Azizi & Hammoud

Case [2021] FCCA 1087

FEDERAL CIRCUIT COURT OF AUSTRALIA

Azizi & Hammoud [2021] FCCA 1087

File number(s): PAC 5263 of 2016
Judgment of: JUDGE NEWBRUN
Date of judgment: 2 June 2021
Catchwords:  FAMILY LAW - parenting - best interests of children - orders made
Legislation:

Australian Passports Act 2005 s 11

Family Law Act 1975 (Cth) ss 68B, 60CC, 60B, 60CA, 61DA, 65DAA, 65D
Cases cited: Slater & Light [2013] FamCAFC 4
Number of paragraphs: 312
Date of last submission/s: 21 April 2021
Date of hearing: 14, 15, 16 and 17 October 2019, 19, 20 and 21 April 2021
Place: Parramatta
Counsel for the Applicant: Mr Shroder
Solicitor for the Respondent: Ms Karagiannis
Counsel for the Independent Children's Lawyer: Ms Mezna

ORDERS

PAC 5263 of 2016
BETWEEN:

MR AZIZI

Applicant
AND:

MS HAMMOUD

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

2 JUNE 2021

THE COURT ORDERS THAT:

1.That the Mother shall have sole parental responsibility for the children, X born in 2015 and Y born in 2014 ("the children").

2.That the children live with the Mother.

3.That the Father shall spend no time with the children, apart from supervised identity contact, referred to below.

4.The children shall spend supervised time with the Father at a contact centre for the purposes of identity contact only and being 3 occasions each year for up to 2 hours on each occasion.  The Father shall pay the fees for such supervised identity contact.

5.That pursuant to Section 68B of the Family Law Act 1975 (Cth) (the Act), the Father be and is hereby restrained by injunction from:

(a)Approaching or attempting to contact the Mother or the children except through a legal practitioner; and

(b)Coming within 200 metres of the Mother and/or the children, including but not limited to the Mother's residence and the children's school.

(c)Approaching the Mother at a temple or place of worship, in the event that both parents are present at the same time. However, the Father shall be at liberty to interact with the children in the event that they approach him while at the temple.

6.That the Mother provide to the Father, each three months, via his local Church, a package of information about the children, including, but not limited to:

(a)A recent photograph of the children;

(b)The latest school report of the children and any other correspondence or memoranda received from their school;

(c)All Medical reports received concerning the children's health and general wellbeing; and

(d)A short written statement outlining the children's current health, current personal interests and their general progression, without necessarily identifying addresses or contact details of the Mother or children.

7.That, by Consent, the Mother be and is authorised to change X’s Christian name to X.

8.That the Mother be at liberty to apply for the issue of an Australian Passport and the renewal of same for the children without the consent of the Father being obtained and for the purposes of section 11 of the Australian Passports Act:

9.The Mother is permitted without restriction to travel…

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Azizi & Hammoud [2021] FCCA 1087
Case
[2021] FCCA 1087
Decision Date

CaseChat Overview and Summary

In the matter of Azizi and Hammoud, heard before Newbrun J, the dispute concerned parenting orders for two young children, X (born 2015) and Y (born 2014). The applicant father and respondent mother sought orders regarding parental responsibility, living arrangements, and contact with the children. The proceedings were initiated following the parties' separation in March 2016, which the mother described as occurring due to fear for her safety.

The court was required to determine several key legal issues, including the allocation of sole parental responsibility, the children's living arrangements, the extent and nature of the father's contact with the children, and the imposition of injunctions to protect the mother and children. Additionally, the court considered issues relating to the children's names, international travel, and the provision of information about the children to the father. The court also had to assess the weight to be given to the children's views, the nature of the parent-child relationships, the parents' past involvement in decision-making and spending time with the children, their fulfillment of maintenance obligations, and the likely effect of any changes in the children's circumstances.

Newbrun J applied the paramountcy principle of the children's best interests, as enshrined in Section 60CC of the *Family Law Act 1975* (Cth). The court gave significant weight to the need to protect the children, noting the mother's fear of the father on the day of separation and the father's detention by immigration authorities. The court found that the children lacked sufficient maturity to have their views given significant weight, a conclusion supported by expert and family report evidence. The court also considered the meaningful relationship primary consideration, noting the children's close relationship with the mother's extended family and the limited supervised time the father had spent with the children since separation. The court concluded that the children would not experience significant emotional harm from spending only identity contact time with the father, given their prior experience of supervised contact.

The court made orders granting the mother sole parental responsibility and stipulating that the children live with her. The father was ordered to spend no time with the children, except for supervised identity contact on three occasions per year, for which he was to pay the fees. Injunctions were granted restraining the father from approaching or contacting the mother or children except through legal practitioners, and from coming within 200 metres of them. The mother was directed to arrange for a social worker to explain the contact orders to the children. The court also authorised the mother to change one child's Christian name and the spelling of another child's name without the father's consent, and permitted her to obtain passports and travel internationally with the children without the father's consent. The order for independent representation of the children was discharged, and there were no orders as to costs.

Orders

Orders of the court

PAC 5263 of 2016

BETWEEN:

MR AZIZI

Applicant

AND:

MS HAMMOUD

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

2 JUNE 2021

THE COURT ORDERS THAT:

1. That the Mother shall have sole parental responsibility for the children, X born in 2015 and Y born in 2014 ("the children").

2. That the children live with the Mother.

3. That the Father shall spend no time with the children, apart from supervised identity contact, referred to below.

4. The children shall spend supervised time with the Father at a contact centre for the purposes of identity contact only and being 3 occasions each year for up to 2 hours on each occasion. The Father shall pay the fees for such supervised identity contact.

5. That pursuant to Section 68B of the Family Law Act 1975 (Cth) (the Act), the Father be and is hereby restrained by injunction from:

(a) Approaching or attempting to contact the Mother or the children except through a legal practitioner; and

(b) Coming within 200 metres of the Mother and/or the children, including but not limited to the Mother's residence and the children's school.

(c) Approaching the Mother at a temple or place of worship, in the event that both parents are present at the same time. However, the Father shall be at liberty to interact with the children in the event that they approach him while at the temple.

6. That the Mother provide to the Father, each three months, via his local Church, a package of information about the children, including, but not limited to:

(a) A recent photograph of the children;

(b) The latest school report of the children and any other correspondence or memoranda received from their school;

(c) All Medical reports received concerning the children's health and general wellbeing; and

(d) A short written statement outlining the children's current health, current personal interests and their general progression, without necessarily identifying addresses or contact details of the Mother or children.

7. That, by Consent, the Mother be and is authorised to change X’s Christian name to X.

8. That the Mother be at liberty to apply for the issue of an Australian Passport and the renewal of same for the children without the consent of the Father being obtained and for the purposes of section 11 of the Australian Passports Act:

9. The Mother is permitted without restriction to travel internationally with the children.

10. That the Mother be at liberty to apply to change the spelling of the child's name, X born in 2015, to "X" without the Father's signature being required.

11. That the Father have the leave of this Court to publish the Report of Ms B and the Court's Reasons For Judgment to all of the treating medical and allied health practitioners of the Father.

12. The Mother is forthwith directed to take all reasonable and necessary steps to engage a social worker, attached to the Domestic Violence Unit of Legal Aid NSW, to explain to the children the nature of the Court’s Orders relating to spending only supervised identity contact time with the Father.

13. That the Order for independent representation of the children be and is hereby discharged.

14. That there be no order as to costs of these proceedings.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The following Exhibits were relied upon: (a)Exhibit A: Child support payment documents;(b)Exhibit B: Family Report and Child dispute Conference Memorandum;(c)Exhibit C: Application in a Case regarding Service of Divorce Application and email from solicitor;(d)Exhibit D: Documents from Dr F; 5 pages from sleeve 6 of subpoena documents;(e)Exhibit E: Report from Dr F;(f)Exhibit F: Email from Dr F relating to the Father’s proposed treatment in a men’s behavioural change course dated 10 December 2017;(g)Exhibit G: Email chain regarding contact centre, documents from sleeve 2 of subpoena material;(h)Exhibit H: Immigration documents;(i)Exhibit I: Sleeve 10 tag M 10.6, M 10.5, M 10.8 and M 10.9, from NSW Police, Documents from sleeve 2 of subpoenaed material;(j)Exhibit J: Sleeve 5 documents from Region L Contact Service (Tabs 5.3, 5.5, 5.10);(k)Exhibit K: Consent Orders; (l)Exhibit L: Mother’s two Letters (including the Legal Aid Correspondence);(m)Exhibit M: Mother’s Tender Bundle;(n)Exhibit N: Father’s tender bundle of documents (except Father not relying on items 6 and 7 being the reports of Dr G);(o)Exhibit O: Mother’s proposed Minute of Order;(p)Exhibit P: ICL proposed Minute of Order.EVIDENCE The Court has considered all the parties’ material. It now refers to certain of that material.The Mother’s Affidavits The Father is aged 45 years and was born in Country H. The Mother is aged 44 years and was born in Country J. The parties were married in Australia in 2013. The eldest child is now in Year 2 and the youngest child is in Year 1. The Mother is looking for a job. She continues to receive Centrelink allowance. The Father is not presently working due to a work injury suffered at his last-place employment in 2015. He suffered injuries to his neck, right shoulder and back. His shoulder was operated on in 2018 and his back was operated on in 2020. He is due to have a further operation to his neck. The parties separated on 9 March 2016 following an incident on that day. On that day the Mother left the family home with the children as she was afraid the Father was going to kill her. The Mother and the children lived with the maternal grandparents until about August 2016. The Mother has been the primary carer for the children since birth to date. During the parties relationship the Father did not assist the Mother with basic parenting tasks such as changing the children’s nappies or bathing them. From separation until 13 January 2018 the Father did not spend any significant time with the children. During this period the Mother was very scared of the Father. The Father was detained by the Department of Immigration and resided at Suburb K Detention Centre from 2016 until 2017. On 22 September 2017, the parties agreed on interim parenting orders for the children to spend time with the Father supervised by the Region L Contact Service (the contact centre) for two hours each fortnight. The Mother agreed to contribute $50 per fortnight towards the cost of the service.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Court gives significant weight to this need to protect primary consideration.Section 60CC(3) - Additional Considerations (a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views The Court does not attach any significant weight to the views of the children. These young children lack sufficient maturity to understand the risk of harm posed by the Father to them. The evidence of the single expert and family report writer is consistent with this view.(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child) The Court refers to its discussions above under the meaningful relationship primary consideration. The children have a close relationship with the Mother’s extended family, including the maternal grandmother and aunts and uncles.(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child The Mother has taken such opportunities. The Father’s ability to take such opportunities has been limited by, inter alia, the terms of an AVO, the Mother’s unwillingness to facilitate time between the children and the Father when acting protectively towards them in relation to the Father, the Orders for supervised time and related restrictions, and the suspension (for a period) of such Orders by reason of the Father’s behaviour at the contact centre. (ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child The Mother has maintained the children satisfactorily in her care. The Father’s payment of child support to the Mother in relation to the children has been inconsistent. The Mother receives about $360 per month from the Father for child support.(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living The Court refers to its discussion above under the meaningful relationship primary consideration in relation to the nature of the children’s relationship with the Father. The Court observes that the children have only spent quite limited supervised time with the Father since separation. The Court is of the view that there is a significant prospect that the children will not experience significant emotional harm if they only spend identity contact time with the Father, as discussed under the meaningful relationship primary consideration, having previously spent, during certain periods, regular supervised time with him. In this context, the Court proposes to make the following order to assist the children in transitioning from regular supervised time to only supervised identity contact time:The Mother is forthwith directed to take all reasonable and necessary steps to engage a social worker, attached to the Domestic Violence Unit of Legal Aid NSW, to explain to the children the nature of the Court’s Orders relating to spending only supervised identity contact time with the Father, noting that the children have previously spent, over certain periods, regular supervised time with the Father.