Beshara & Halim

[2021] FCCA 244

FEDERAL CIRCUIT COURT OF AUSTRALIA

Beshara & Halim [2021] FCCA 244

File number:	DNC 461 of 2019
Judgment of:	JUDGE YOUNG
Date of judgment:	12 February 2021
Catchwords:	FAMILY LAW – parenting – application concerning a child who is five years old –whether the child should spend overnight time with the father – where father lives interstate – where the child has been diagnosed with moderate obstructive sleep apnoea – where father sceptical of child’s diagnosis – court satisfied in best interests of the child to spend time with the father – where father must comply with certain orders before the child spends overnight time with him
Legislation:	Family Law Act 1975 (Cth) ss 60CC(2) and (3)
Number of paragraphs:	42
Date of last submission:	5 February 2021
Date of hearing:	4-5 February 2021
Place:	Darwin
Counsel for the Applicant:	Ms Farmer
Solicitor for the Applicant:	Withnalls Lawyers
Counsel for the Respondent:	Ms Adams
Solicitor for the Respondent:	GLR Law
Counsel for the Independent Children's Lawyer:	Ms Tregear
Solicitor for the Independent Children's Lawyer:	Arafura Legal

ORDERS

DNC 461 of 2019

BETWEEN:

MS BESHARA

Applicant

AND:

MR HALIM

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	12 FEBRUARY 2021

THE COURT ORDERS THAT:

1.That the parents have shared parental responsibility for the child X born in 2015.

2.In the event that either one of the parents, in the exercise of shared parental responsibility for the child, proposes to make a decision about a major long-term issue in relation to the child that parent shall:

(a)consult the other parent; and

(b)make a genuine effort to come to a joint decision about that issue; but

(c)in the event that the mother consults the father about a major long-term issue and the father fails, refuses or neglects to respond to the mother within 14 days the mother is permitted to make the decision without further consulting the father.   

3.The child shall live with the mother.

4.The father shall consult the child’s treating paediatrician or other treating medical practitioners in relation to the child’s condition of sleep apnoea and so inform himself of the nature and severity of the condition and requirements for the appropriate treatment and management of the condition.

5.The father is to consult the providers or suppliers of the child’s CPAP machine and familiarise himself with the machine’s operation so that if the child spends overnight time with the father he is able to safely use the machine and apply it to the child.

6.The father shall supply written evidence to the mother that he has complied with orders 4 and 5 before the child spends any overnight time with him. 

7.The child shall spend time with the father as follows:

(a)for two periods in Darwin: 

(i)The first period will be five days and during that period the child shall spend two days during the day from 10 AM to 5 PM on the first two days and then from 10 AM on the third day to 12 noon on the fifth day (it is intended that the child will spend the final two nights of the five day period overnight with the father so, for example, if the time begins on a Monday the child will spend Monday and Tuesday during the day with the father and then from Wednesday 10 AM to Friday 12 noon with the father including two overnight periods); 

(ii)The second period will be seven days and during that period the child shall spend two days during the day from 10 AM to 5 PM on the first two days and then from 10 AM on the third day to 12 noon on the seventh day (it is intended that the child will spend the final four nights of the seven day period overnight with the father so, for example, if the time begins on a Monday the child will spend Monday and Tuesday during the day with the father and then from Wednesday 10 AM to Sunday 12 noon with the father including four overnight periods). 

(b)During NT school holidays, for three periods a year of seven days each on the Region B, Queensland once the child has spent two periods in Darwin with the father in accordance with (a) above. 

(c)The father is to provide the mother with 90 days’ notice of the periods he proposes to have the child spend time with him on the Region B.

(d)Until the child is able to travel unaccompanied on an airline, the father, at his expense, is to fly to Darwin and return with the child to the Region B and the mother, at her expense, is to fly to Brisbane at the end of the period and return with the child to Darwin, and the father is to ensure that the child is delivered to the mother at Brisbane airport for that purpose unless otherwise agreed.

8.The child is to communicate with the father each Wednesday, Friday and Sunday by telephone or audio-visual link with the father to place the call.

9.Before the child spends any overnight time with the father on the Region B, Queensland, he is to enrol in and complete the Post Separation Better Parenting Program offered by C Counselling, Region B and provide the mother with written confirmation that he has done so.

10.The mother is to enrol in and complete the Bringing Up Great Kids course offered by C Counselling, Darwin and provide the father with written confirmation that she has done so. 

11.The mother is to attend upon her treating general practitioner with a view to seeking a referral to a psychologist to seek therapeutic support in relation to her anxiety about the child spending time with the father overnight and her negative relationship experiences with the father.

12.The parents are to utilise an electronic parenting communication program such as Our Family Wizard or Custody X-Change in relation to communications about the child.

13.The father is restrained and an injunction is issued restraining the father from seeking any other diagnosis or assessment of the child’s condition of sleep apnoea without the prior written agreement of the mother.

14.The parties are to pay equally the costs of the independent children’s lawyer, with the exception of the independent children’s lawyer’s costs in relation to the father’s application that she cease acting, for which the father will pay the independent children’s lawyer’s costs fixed in the amount of $500.

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 Beshara & Halim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a parenting case about a child, X, who is five and half years old.  X lives with his mother in Darwin.  His father lives on the Region B and X has not spent any time with his father since mid-2019 when his father visited Darwin for a relatively short period when X went into hospital for some surgery.

2. X suffers from moderate obstructive sleep apnoea.  He is under the care of a paediatrician and he uses a machine, called a CPAP machine, during the night to monitor his sleep, sleeping breathing and oxygen levels.  There is no medical evidence before me about the risks to the child's health from this condition but there were reports of two sleep studies annexed to the mother's affidavit which provide some information about the condition.

3. The father did not dispute that the child suffers from the condition but he asserted that there was no serious risk to the child's health from the condition.  He said that if the child were to spend time with him on the Region B he would purchase a CPAP machine and he was perfectly capable of operating it correctly and monitoring the child's health while in his care. The father is a medical professional.

4. The father expressed a degree of scepticism about the seriousness of the child’s sleep apnoea.  He stated that if the child was visiting him in Queensland he proposed to obtain a “second opinion” about the child’s sleep apnoea.  Surprisingly, given the father’s scepticism, he had not sought to speak to the child’s paediatrician in Darwin about the child’s condition.  I am concerned that the father does not genuinely accept the child’s diagnosis of sleep apnoea.  If so, this constitutes a potential risk to the child’s health while the child is in the father’s care.  In my view, it is important that the father educate himself about the child’s condition and its seriousness.

5. The mother asserts that such are the risks to the child's health, if the father does not adequately monitor the child's health while he is in his care, that the child should not spend overnight time with the father in the Region B until he turns eight years old.  As noted, unfortunately there was no medical evidence before the court that would permit a proper assessment of the competing claims of the parties about this issue. 

6. The proposal of the applicant mother was that the child should live with her and spend time with the father, initially in Darwin, including overnight time in a number of week-long blocks.  As noted, she opposed the child travelling to the Region B to spend overnight time with the father until he is eight years old.  Once the child turned eight she proposed that the child should spend one week on four occasions with the father during the year.  She proposed that she have sole parental responsibility for the child, although at the conclusion of the trial the mother submitted that sole parental responsibility should be limited to medical matters.  In submissions she further varied her submission to say that, if the father did not engage or consult with her in relation to any medical issues, she should be entitled to make the relevant decision.  There was some evidence that the father had, at times, ignored the mother’s proposals in relation to education and health issues but there was no evidence that he had opposed her decisions or refused to give his consent.

7. The mother had also sought orders in her application that she be permitted to travel to Nigeria with the child to visit her family.  She did not seek these orders at trial.

8. The father proposed that the child live with the mother and spend time with him on the Region B for a week at a time over three periods during the year.  He initially opposed coming to Darwin to spend any time with the child before the child spent any overnight time with him on the Region B.  However, during the trial he moderated his position to say that he was prepared to spend one week in Darwin with the child before any overnight time commenced on the Region B.  In submissions he said that any time spent in Darwin should be limited to no more than two occasions before the child began to spend overnight time with him on the Region B. 

9. The parties separated in 2017 in Queensland.  After separation the mother initially obtained employment as a trainee health care worker in Town D in New South Wales. Later she moved with the child to Town E in Queensland as a trainee health care worker, apparently with the same employer. In early 2019 the mother's employer offered her a trainee position in Darwin which she accepted, taking the child with her. 

10. The father alleged that each of these moves was unilateral and the mother did not consult him beforehand. It is true that the time spending orders made by the Federal Circuit Court in Queensland contemplated that the time would take place on the Region B and the mother did not, at any time, seek a variation of the orders until she commenced proceedings in Darwin.  However, I am not satisfied that the mother on each occasion failed to consult the father. 

11. The mother was cross-examined with a view to establishing that she had left for Town E unilaterally.  The mother answered that she had communications from the father which showed that he had agreed and approved of her departure. This material was tendered in evidence and showed that the father had been consulted and had discussed the move with the mother and had approved it, presumably accepting that she was following the availability of employment.  Although there was no similar evidence in relation to the other relocations I am satisfied that the cross-examination of the mother, presumably on instructions, indicates that the father's evidence is unreliable.  Generally, I accept the mother was a reliable witness and, where there is a conflict, I prefer the evidence of the mother. 

12. Another indication of the father's reliability concerned an application made by him at the outset of the trial for an order that the independent children's lawyer (“ICL”) not continue to act.  The father alleged that the ICL was motivated by malice against him and was partisan.  The basis for this was said to be a letter the ICL wrote to the parties where she said that the father had agreed to the mother's relocation to Darwin and that the child should spend some time with the father in Darwin before any overnight time took place in Region B having regard to the long period during which the child had not spent any time with the father.  While there is no real evidence about whether or not the mother consulted the father or whether he agreed before she moved to Darwin  I am satisfied that in any event the statement of the independent children's lawyer, if incorrect, was no more than an inadvertent mistake.  The second part of what she said, that the child should spend overnight time with the father in Darwin before spending overnight time with the father on the Region B, merely reflected a recommendation of the family consultant.  There was no proper basis for such an application to the court and the allegation that the ICL was motivated by malice was an allegation that should not have been made. It is regrettable that was made but it leads me to conclude that the father is prone to making baseless allegations. 

13. There were also allegations of family violence between the parties.  The mother alleged that during the marriage she had been subjected to physical violence on a limited number of occasions and controlling and denigrating behaviour throughout the relationship.  The father alleged that he himself was a victim of the mother's family violence.  I do not propose to make particular findings about the individual allegations, and there was no cross-examination directed to that, but, as I say, I accept the mother is a generally reliable witness and I am satisfied what she says about this issue is likely to be true. 

14. The father also made a number of serious and baseless allegations against the mother in his trial affidavit.  One example was his allegation that the mother suffered from “Munchausen syndrome by proxy. This is a mental health problem in which a caregiver makes up or causes an illness or injury in a person under his or her care (e.g. a child).”  There was no evidence to support that claim and the evidence was to the contrary. However, the fact that the claim was made is concerning.  When the father was asked what he meant by that claim he retreated from the original claim and said that he merely intended to convey that the mother exaggerated the child's medical condition of sleep apnoea in order to ensure that the child did not spend time with him.  I reject that claim.

15. The father, as noted previously, said in cross-examination that if the child spent time with him in Queensland he planned to seek a second opinion about the child’s sleep apnoea.  Given that the father has not made any effort to speak to the child’s paediatrician in Darwin about the child’s condition I am suspicious of the father’s intentions in this regard.  I am not satisfied his intentions are completely genuine and his plan, if carried out, is likely to be productive of needless suspicion and conflict between the parents.  I propose to make an injunctive order restraining the father from seeking a further assessment or diagnosis in relation to the child’s sleep apnoea without the prior written agreement of the mother.

16. There was evidence that the mother suffers from some anxiety about the child spending overnight time with the father. The family consultant recommended some therapeutic intervention from a psychologist to help her cope with her anxiety.  I am satisfied that there is some a basis for her anxiety about the father’s attitude to the child’s condition but I also accept that some therapeutic intervention would be beneficial.

17. The only witness other than the parties was the family consultant. The family consultant was unable to conduct formal observations of the child with his parents because the interviews were conducted by audio-visual link due to pandemic restrictions.  This is a significant limitation on the value of the report.  Nevertheless, the family consultant described the child as “delightful and chatty” and said he was reaching his developmental milestones.  The child said he liked talking to his father.  The family consultant assessed the child as not experiencing any “significant vulnerabilities in his life”.  She thought he had a strong relationship with his mother and felt supported and loved by her.  Despite the limited time the child spent with the father in recent times she believed that the child’s consistent “virtual time” with the father had permitted their relationship to develop and grow.  Importantly, the mother told the family consultant that the father “is a good father, gentle with X and that X loves him and enjoys the time together”.  The family consultant expressed the opinion that, somewhat unusually, the child’s relationship with his father had been maintained by virtual time and that the father was skilled in engaging the child in this way.  She also believed the mother had facilitated and supported the relationship of the child with his father.  She expressed the opinion that “… the result of these factors has allowed for and provided a safe and secure emotional place from which X is comfortable in his relationship with his father”.

18. The family consultant recommended that the child live with the mother and spend time with the father on the Region B after an initial period of overnight time in Darwin.  She recommended that the child communicate with father each Wednesday, Friday and Sunday.  She recommended that both parents attend a parenting orders program.  She recommended that the parties use an electronic parent communication program such as Our Family Wizard or Custody X-Change. She recommended that the mother attend upon a psychologist to seek therapeutic support in relation to her anxiety about the child spending time alone with the father overnight.  She said the father may benefit from attending a men’s behaviour change program. The father was resistant to this proposal. Although I accept that there is a proper basis for the recommendation I am satisfied that the father’s resistance is likely to make such an order problematic. I am not satisfied, on balance, that it is likely to be beneficial.

19. The final positions of the parties were, for the mother:

    ·that there be shared parental responsibility but in the event that the father did not respond to any proposal by her within a limited time, say seven days, she be authorised to make any relevant decision;

    ·that the child live with her;

    ·that the child spend time with father in Darwin on four occasions over the next 12 months before spending overnight time with the father on the Region B;

    ·that the father consult with the child’s treating paediatrician to educate himself about the child’s condition of sleep apnoea;

    ·that the father familiarise himself with the operation of the child’s CPAP machine before the child spends overnight time with him;

    ·that the father provide evidence that he has done so with a letter or similar from the supplier of the machine; and

    ·that the father attend a men’s behaviour change program. 

    The mother said that once the father had complied with these conditions the child should spend three occasions of one week each with the father on the Region B. 

1. The father’s position was that there be shared parental responsibility and the child live with the mother.  He agreed that the child spend three occasions of one week each with him on the Region B in each year.  He sought that that begin immediately but in submissions he agreed to visit Darwin twice, and preferably only once, to spend time with the child before the child commenced to spend time with him on the Region B.  He was opposed to attending a men’s behaviour change program, asserting that it was not an appropriate course for him.  He agreed to consult the child’s paediatrician in Darwin and to familiarise himself with the operation of the child’s CPAP machine.

2. In deciding a parenting case the court is required to follow the legislative pathway set out in Part VII of the Family Law Act 1975 (Cth) (the Act).

3. In determining what is in the best interests of a child the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.

4. Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

5. When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (b).

6. I am satisfied that there is benefit to the child in having a meaningful relationship with his mother and father. The child has spent no time with the father over the past 18 months or so but it is not in dispute that the father loves the child and the child has a good relationship with his father.

7. In my view subsection 2(b) is also engaged. I am satisfied that the child suffers from a serious medical condition, moderate obstructive sleep apnoea. I am concerned that the father underplays the seriousness of that condition. I do not know whether that constitutes a risk to the child or, if so, the degree of any risk but I am satisfied that the father needs to show that he takes the matter seriously and that he needs to demonstrate that to the mother. I consider that the mother is, to some extent, justified in her anxiety about the child in the father’s care.  Nevertheless, I am satisfied that any risk to the child from the father’s scepticism or ignorance about this condition can be reduced to an acceptable level. I propose to make orders that the father is to consult, at his expense, the child’s treating paediatrician in order to fully inform himself about the child’s condition. He is to undertake training to familiarise himself with the operation of the child’s CPAP machine and to provide confirmation to the mother that he has done so. 

8. I will now turn to the additional considerations in subsection 60CC(3).

9. In relation to (a), the child’s views, the child is too young at 5 years old to express a considered view. However, the mother says the child loves his father and the family consultant, relying on the mother’s statement to a significant extent, accepted that the child was comfortable and secure with his father.

10. In relation to (b), the nature of the relationship of the child with his parents and any other persons, the child is strongly attached to the mother with whom he has lived all his life. The child is secure and comfortable with the father although he has not spent face to face time with the father since 2019 and then for a relatively short time while the child was in hospital.

11. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, the mother has taken responsibility for these issues.  The mother complained that the father has disengaged at times when she sought to consult him about issues in relation to the child.  On one occasion she said that the father simply failed to respond to her when she made a proposal about the child’s school.  I accept the mother’s evidence about this and I am satisfied that at times the father, for reasons unexplained, has simply declined to speak to her about the child.  In the circumstances I am satisfied that, if the father does refuse to engage with her in future, the mother should be permitted to make the long-term decisions about the child.

12. In relation to maintenance of the child under part (ca), the evidence was that the father has complied with his child support assessment.   

13. In relation to (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 their parents or any other child or other person with whom they have been living, a change in the child’s circumstances in not contemplated.

14. In relation to (e), the practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents, this is an issue.  The mother is anxious, with some justification, about whether the father will properly care for the child overnight given his condition of sleep apnoea.  The family consultant recommended that the child should spend overnight time with the father on the Region B.  I accept that recommendation but I am satisfied that the child should spend time with the father on two occasions in Darwin for the purpose of ensuring that the child is comfortable with the father when he travels to the Region B and for the purpose of reassuring the mother that the child will be safe and properly cared for by the father. 

15. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I am satisfied that both the mother and the father are capable of providing for the child’s emotional and intellectual needs.

16. In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.

17. In relation to (h), the child is not an Aboriginal or Torres Strait Islander child.

18. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love the child but the father’s involvement in recent times with the child has been limited.  Nevertheless, the mother accepted that the child is close to his father and enjoys his company and that the father is a gentle and attentive parent.  I accept the mother’s evidence that the father has been sceptical of her concerns about the child’s sleep apnoea and there is no proper basis for the father’s scepticism.  His scepticism needlessly adds to the mother’s anxiety and, in my view, indicates some limitations in the father’s attitude to the child and the responsibilities of parenthood.   

19. In relation to (j), any family violence involving the child or a member of the child’s family, I am satisfied there has been family violence but this is historical and not currently a problem.

20. In relation to (k), no family violence order currently applies but a family violence order for the protection of the mother applied in the past.

21. In relation to (l), whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, I have given this consideration in the orders I propose to make.

22. In relation to (m), any other fact or circumstance that the court thinks is relevant, there is no other such fact or circumstance.

23. As there will be an order for shared parental responsibility the court is required by section 65DAA to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child.  Having regard to the fact that the mother and father live in different states I am satisfied that orders for equal time or substantial and significant time are not reasonably practicable.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 12 February 2021