BASHIR & GHANI - [2017] FCCA 3448

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASHIR & GHANI

[2017] FCCA 3448

Catchwords:
FAMILY LAW – Parenting – undefended as against the mother – allegations of family violence – children’s best interest – the father to have sole parental responsibility for the children – children live with father – no orders as to time between the children and the mother.

Applicant:

MR BASHIR

Respondent:

MR GHANI

File Number:

PAC 4940 of 2016

Judgment of:

Judge Obradovic

Hearing date:

22 November 2017

Date of Last Submission:

22 November 2017

Delivered at:

Parramatta

Delivered on:

22 November 2017

REPRESENTATION

Appearing for the Applicant:

No appearance

Counsel for the Respondent:

Ms Spain

Solicitors for the Respondent:

Falzon Legal Pty Ltd

ORDERS

All previous orders are discharged.
The father shall have sole parental responsibility for the children X born in 2012 and Y born in 2015.
The children shall live with the father.
Discharge the airport watch list order made on 29 November 2016 and the Court requests that the Australian Federal Police remove the names of the children X born in 2012 and Y born in 2015 from the Airport Watch List at all points of international arrivals and departures in Australia.
X born in 2012 and Y born in 2015 are permitted to travel internationally, without the need for the consent of the mother to be provided to the issue of a passport to the said children. The father shall be the only person with ‘parental responsibility’ of the said children for the purposes of applying for, and being issued with, an Australian passport for the said children.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4940 of 2016

MR BASHIR

Applicant

And

MR GHANI

Respondent

REASONS FOR JUDGMENT

(Ex-Tempore; Revised from Transcript)

The matter is listed for final hearing on an undefended basis today with no appearance by the applicant mother who commenced these proceedings by way of initiating application on 20 October 2016. There have been a number of Court events and orders since the filing of the initiating application with the mother either being represented or in attendance at Court on the days when the matter was before the Court, except for 6 November 2017 when there was no appearance by the mother. Certainly, on 10 August 2017 she was here personally when orders were made to prepare the matter for trial.
I am satisfied, having regard to the material relied upon in the father’s case, that the matter should proceed on an undefended basis today and that the orders which the father seeks in his amended response filed on 30 October 2017 are appropriate.[1] Those are also the orders that are reflected in the case outline document which the father has had prepared and filed on his behalf.
[1] I do note that there were two responses filed on the same day. One at about 11 o'clock in the morning and the other one at about 3.15pm, both being filed electronically, it is the second of those amended responses that I understand the father is relying upon in terms of the orders that he seeks.
Just by way of brief history, the parties were married pursuant to an Islamic ceremony and thereafter commenced cohabitation in 2010. There are two children of the relationship, X, who was born in 2012 and Y, who was born in 2015. Since late 2015 and/or early 2016, the children have been living with the father, such that Y has been living with the father on a full-time basis since he was about seven months old.
The orders which the father seeks are that he have sole parental responsibility for the children, that the children live with him and that he be permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel. In support of that order, the father also asks the Court to dispense with the requirement for the mother’s signature for the issue of the Australian passports and also seeks an order that all previous parenting orders be discharged, including the airport watchlist order which had been previously made.
The Court is satisfied that the presumption of equal shared parental responsibility has been rebutted in all of the circumstances of this case. Not only has the mother had very little involvement with the children since they commenced living with the father, but also she has failed to participate in any meaningful way in these proceedings. She has not shown appropriate capacity to parent or care for the children or to meet any of their needs. The mother, on the father’s evidence which the Court accepts, also seems to have a drug dependency problem.
Certainly, there is direct evidence of observations of the mother using the drug ice. Such observation has been made by relatives of the mother who live in the maternal grandfather’s home. That evidence is before the Court by way of affidavit from the maternal step-mother (that is the step-grandmother of the children on the maternal side) and also the brother of the maternal step-grandmother. The father, in his lengthy affidavit, sets out a history of care of the children and the difficulty which he observed the mother had in caring for the children during the period that the parties lived together. He also deposes to her behaviours during that time, including abusive behaviours towards him. He gives similar evidence as to the mother’s behaviours post-separation.
The father deposes to facts in his affidavit which indicate that the mother was using illicit substances, during the parties’ relationship and post the parties’ relationship. The father has observed the mother’s behaviours such that they indicated to him that she was affected by the use of illicit substances. The father deposes that the children have both witnessed the mother being violent and that they have been subject to physical, emotional and psychological abuse from the mother. The Court is satisfied that there are reasonable grounds to believe that the mother has engaged in family violence such as to satisfy the Court that the presumption of equal shared parental responsibility is rebutted. For that reason, the Court will be making an order for the father to have sole parental responsibility for the children.
It is also appropriate, in all of the circumstances, for an order that the children live with the father be made. The Court accepts the father’s evidence and the other evidence in his case. The children have had all of their physical and emotional needs met by the father who is a caring and loving parent who has done his best to care for these children in very difficult circumstances.
The father has also, by virtue of the proceedings which have been before the Court since October 2016 and by virtue of the orders which have been made from time to time by this Court, sought to facilitate and promote a relationship between the children and the mother. Since the orders were made for time between the children and the mother to occur, supervised by a contact centre, and after the parties completed the intake process, the contact centre has deemed the parties as not suitable for time to occur at the contact centre.
That decision was made by the contact centre out of concern that the mother was not “in an emotional or physical state to currently have positive contact with the children at the centre”. That decision was determined following inconsistent and concerning behaviour of the mother observed by the contact centre staff. The father, in his affidavit, also deposes to matters which have been said to him by the coordinator of the contact centre, those matters being contained in paragraphs 262 and 263 of his most recent affidavit.
The father also, deposes to the difficulties that he has had with X in terms of promoting a relationship between the mother and X and deposes to X being frustrated and anxious about spending time with the mother. Given the mother’s lack of involvement, as the Court finds through the father’s evidence, an order for the children to spend specific time with the mother at this stage is not an appropriate order and is not an order that is in the children’s best interest. The Court notes that the orders which the father seeks are silent as to the time that the children would be spending with their mother and the Court deems that such an order is, in all of the circumstances, appropriate.
If the mother’s circumstances change and she commences proceedings for parenting orders at some future date, the father has indicated through his counsel that certainly at present, it is not his intention to raise a Rice & Asplund[2] issue in any further parenting proceedings. However, while this may be his present intention, his views and circumstances may change and indeed, the mother’s circumstances may not change such as to warrant the parenting proceedings being reopened. In any event, that is a matter that the parties can deal with and the Court can deal with if and when raised in the future.
[2] [1978] FamCA 84
In relation to the overseas travel, given that the father is going to have sole parental responsibility for the children, that the children will be living with the father, and that the father has travelled to Country B in the past with the children and has returned to this country where he and the children live, the Court deems an order permitting the father to travel overseas with the children at future points in time without need for further order and without need for the mother’s consent to be an appropriate order. Likewise, for the issue of a passport.
An order in the standard terms in relation to the issue of a passport for the children on the father’s application and also permitting the father to travel overseas with the children will be made. I discharge the airport watchlist order made on 29 November 2016 and request the police to remove the children’s names from the airport watchlist.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 15 February 2021