Bashir & Bashir (No 2)

[2020] FCCA 3440

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bashir & Bashir (No 2) [2020] FCCA 3440

File numbers:	MLC 11497 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	15 December 2020
Catchwords:	FAMILY LAW – interim parenting – where mother fails to facilitate time with father pursuant to orders – where father seeks a recovery order – interim orders made for children to live with father.
Legislation:	Family Law Act 1975 (Cth) s 60CC.
Number of paragraphs:	20
Date of last submissions:	15 December 2020
Date of hearing:	15 December 2020
Place:	Melbourne
Counsel for the Applicant:	Mr J Williams
Solicitor for the Applicant:	Pearsons Lawyers Pty Ltd
The Respondent:	No Appearance
Counsel for the Independent Children's Lawyer:	Ms P Villella
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

ORDERS

MLC 11497 of 2020

BETWEEN:

MR BASHIR

Applicant

AND:

MS BASHIR

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	15 DECEMBER 2020

THE COURT ORDERS THAT:

1.Until further order, the children X born in 2009 and Y born in 2012 ('the children') live with the Father.

2.The Father collect the children this day from their usual school.

3.The Mother, her servants and agents be and are restrained from removing the children or either of them from their usual school or from the Father's care.

4.The Father do all acts and things to cause this order to be brought to the attention of the principal of the children's school.

5.After the Father has collected the children from the school this day, the Father cause this order to be served upon the Mother by email and by text message to her mobile phone number.

6.The Father's costs of this application be reserved.

7.All extant applications be adjourned to the Federal Circuit Court of Australia at Melbourne (via Microsoft Teams) on Tuesday 22 December 2020 at 9.30am for interim hearing.

8.There be liberty for the Mother to apply to vary these orders on short notice.

AND THE COURT NOTES THAT:

A.The section 11F child inclusive conference ordered on 29 October 2020 did not proceed when the Mother did not attend and the Court has arranged for that facility to be available to the parents on 23 December 2020.

B.The matter remains listed for a conciliation conference on 19 January 2021 and further hearing on 28 January 2021.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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.

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Bashir & Bashir (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This matter comes before me on short notice in the circumstances where I have previously made orders on 29 October 2020 and 8 December 2020.  The matter concerns the children X who is 11 and Y who is eight (‘the children’).  I have taken into account all of the material that has been filed, and I have also taken into account the section 67Z response dated 4 December 2020 provided by the Department of Health and Human Services (DHHS).

2. I have also taken into account the child-inclusive conference memorandum to the Court of 8 December 2020 which describes the Mother not attending for the child-inclusive conference that had been arranged for 3 December 2020, that child inclusive conference having been ordered on 29 October 2020. 

3. I am satisfied that the proceedings had been brought to the Mother's attention prior to 29 October 2020 and she appeared on Microsoft Teams on that day, which was the hearing of an application to review the registrar's decision not to abridge times.  I dealt with the matter on 29 October 2020, and the Mother and Ms Vella (the solicitor for the Father), when the matter was stood down, negotiated what was the most suitable date for the Mother to file material and appear before me.

4. I had a date earlier than 8 December 2020 available to me, but because of the two available dates I provided, 8 December 2020 was most suitable to the Mother, that date was chosen.  I also note that the Mother is highly educated and when she appeared before me was able to communicate in an articulate manner. 

5. After the orders of 29 October 2020 were made it appears to me that those orders may not have been served on the Mother.  The Court does not have any record of them being emailed to the Mother, nor does the Father's solicitors have any record of those orders of 29 October 2020 being sent to the Mother.  On 4 December 2020 my settled reasons of 29 October 2020 that contained those orders were emailed to the parties, including to the Mother at her email address believed to be the correct email address.  I have made inquiries of the Independent Children’s Lawyer and the Father and there is no information that would indicate that the Mother has changed her email address or that that email address is not available to her.

6. The Mother certainly had notice of the orders that I made, because she was online and attending when I actually made the orders on 29 October 2020.  Then on 4 December 2020 those orders were provided to her through the reasons.  On 3 December 2020, that is, the day before the settled reasons were provided, the report writer had telephoned the Mother at 9.33am, 9.45am, and 10.13am and messages were left.  No call was returned.  The report writer attempted to contact the Mother on her email as well as her mobile number. 

7. The matter then returned before me on 8 December 2020, and there was no appearance for the Mother and she had not filed any material.  I am satisfied that I explained to her, or at least brought to her attention, the importance of filing material when she appeared on 29 October 2020.

8. On 8 December 2020, before the matter proceeded, the Father's counsel, at my request, telephoned the Mother and left a message for her.  He was unable to speak to her, and she did not return that call.  In addition to that, at 1.23pm on that day, the proposed orders that I proposed to make that afternoon, which were minutes of intended orders, were emailed to the Mother.  I made those orders of 8 December 2020 later than afternoon.

9. Those orders provided that the Father was to spend time with the children from Friday evening with a McDonald's changeover each weekend.  The evidence shows that on 10 December 2020 (by exhibit B to the Father's affidavit filed on 14 December 2020) the 8 December 2020 orders were emailed to the Mother and that on 10 December 2020 by personal service the 8 December 2020 orders were attached to the door of the premises where the Mother was believed to be residing.

10. On 11 December 2020, the day that the children were due pursuant to the orders to be handed over (as described at page 15 of 24 of the Father’s affidavit of 14 December 2020) the Father, by text message, text the Mother at 4.23pm, 5.15pm, and sent her a Google map of the Suburb C McDonald's and at 5.16pm he said:

    “I am waiting to pick-up the kids.”

11. The Mother did not make any communication or response to the Father and did not provide the children to be available.  On 8 December 2020 I had resisted the application for a self-executing recovery order to be made because I was concerned at the unnecessary trauma to the children of being removed from their Mother's care by the police.

12. It was in those circumstances that on 8 December 2020 I ordered that there be liberty to apply in regard to that, and the orders of 8 December 2020 provided at order number 3 that:

    3. There be liberty reserved to the Father to apply by email to [email protected] for a recovery order in the usual terms upon 24 hours’ notice to the Mother in the event the Mother does not comply with order 2 and/or order 5 herein.

    Order 2 and 5 being the orders that provided for the time with the children from 5pm of a Friday until 9am of a Monday, and order 5 being the 11F child-inclusive conference facility that the Court made available then on 23 December 2020. 

13. Following the weekend where the Mother did not make the children available as orders and I find and am satisfied that the orders of 8 December 2020 were brought to her attention the Mother was given notice by email that, at page 17 of 24 of the Father’s affidavit filed 14 December 2020:

    “We put you on notice that our client will today be filing an Application seeking the recovery of the children pursuant to Order 3 of the Orders.”

14. That email was sent at 8.38am.  On the same day at 10.40am the Independent Children’s Lawyer who had been appointed, Ms Cheevers of Victoria Legal Aid, sent a long and friendly letter by email to the Mother advising her that the matter was listed the following day at 9.30am, as my Court had arranged for the matter to be so listed.  In addition to that, the Mother received an email sent to her at 2.55pm on Monday the 14th that attached the Father's affidavit of 14 December 2020 and the Application in a Case.

15. The Application in a Case sought that the Father be granted leave to proceed on an ex parte basis and that should the Mother fail to appear, orders may be made in her absence and then recited a form of a recovery order addressed to the Marshal of the Court to find and recover the children and deliver them to the Father and that the children live with the Father.  That was at 8.55am and, again, those same documents were also cc'd to the Mother when they were sent to the Independent Children's Lawyer at 2.58pm. 

16. Then, this morning, 15 December 2020, I requested that counsel for the Independent Children’s Lawyer telephone the Mother to alert her to this hearing, not that she needed any more alerting as the proceedings had been brought to her attention numerous times the day previous.  A message was left and nothing further has been received by the Mother.  I am also satisfied that the Mother is able to attend by Microsoft Teams or telephone in this proceeding before me, should she choose to do so.

17. I apply the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’), in particular the best interests of the children and the section 60CC(2), the first limb, of the primary considerations and the second, and note section 60CC(2A) that the safety of the children is to effectively take precedence over maintaining a meaningful relationship if there is any conflict between those matters. I take into account the evidence that the Father has filed as to his psychological and medical treatment as to his medical health, and I note that Dr D, who has some expertise in mental health, advised that:

    “It will be of no risk for Mr Bashir to see and look after his children…”

    (see: Affidavit of Dr D filed 13 November 2020).

18. There is also a report of Ms E, Psychologist, filed 13 November 2020 that corroborated Dr D’s reference to the Father having been referred to a psychologist for therapy. I take into account all of the matters in section 60CC of the Act, and I am at this stage unable to find why the Mother is not participating in the proceedings.

19. I am concerned that she may be suffering some mental ill health or disability, particularly in the light of the Father’s evidence about the Mother, effectively, isolating herself from the community.  Her isolating herself from this court hearing would be consistent with that.  I do note that there was previously a case plan worked out by DHHS which was to ensure that there was time between the Father and the children that was to be supervised by family friends acceptable to the parents. 

20. It is the Father’s evidence that the Mother has refused to cooperate in that case plan, and I note that DHHS as at 4 December 2020 did not intend to take any further action.  I also note that DHHS were of the view that the children were not at any significant risk of harm in the Mother’s care.  I take into account all of those matters and these are my reasons for making those orders.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       16 December 2020