BILAL & HAMDI

[2021] FCCA 440

FEDERAL CIRCUIT COURT OF AUSTRALIA

BILAL & HAMDI [2021] FCCA 440

Catchwords:
FAMILY LAW – Parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68B

68C

Australian Passports Act 2005, s.11

Applicant: MS BILAL

Respondent: MR HAMDI

File Number: PAC 1782 of 2019

Judgment of: Judge Newbrun

Hearing date: 8 March 2021

Date of Last Submission: 8 March 2021

Delivered at: Parramatta

Delivered on: 9 March 2021

REPRESENTATION

Solicitors for the Applicant: Ms Nichelsen - Sarah Bevan Family Lawyers

The Respondent appeared in person

Solicitors for the Independent Children’s Lawyer Ms Wilkins - Phillip A Wilkins & Associates

ORDERS

1. The Mother shall have sole parental responsibility for the child X born in 2017.

2. The child shall live with the Mother. 

3. Pursuant to section 68B of the Family Law Act 1975 (Cth) as an order for the personal protection of Ms Bilal born in 1995 ("the Mother") and X born in 2017 ("the child"), Mr Hamdi born in 1989 ("the Father") be restrained from:

   (a)     being within 200 metres of the Mother or the child;

   (b)contacting the Mother or the child in any way including by telephone, social media, written correspondence or through any third party.

4. In the event that the Father does not comply with the above Order, and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest the Father without warrant pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

5. For the purposes of s 11·Australian Passports Act 2005 (Cth), the Orders above allow:

   (a)The child to travel internationally with the Mother;

   (b)The child to have an Australian passport or travel-related document provided the application for that document is made by the Mother who may sign any declaration on the application in the form approved by the relevant Minister without notice to or the consent of the Father.

NOTATION:

A.Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court notes that the Court or a Registrar may vary or set aside a judgment or Order after it has been entered if the judgment or Order was made in the absence of a party. Any application pursuant to Rule 16.05 by the Father to set aside the above Orders shall be made within three months of today’s Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1782 of 2019

MS BILAL

Applicant

And

MR HAMDI

Respondent

REASONS FOR JUDGMENT

Introduction

1. This undefended final parenting hearing relates to the child X born in 2017.

2. The Mother relies upon her Case Outline for today’s proposed undefended hearing, including the subpoenaed documents referred to in that Case Outline; her Amended Initiating Application filed 22 January 2021; her Affidavit filed 16 April 2019; her tender bundle, Exhibit A; her Notice of Risk filed 18 April 2019; her Affidavit of service filed 28 May 2019.

3. On the 22 October 2020 this Court made Orders that proceedings be adjourned to 8 March 2021; and that should the Father not have filed his Court documents (see the Court’s Orders of 29 July 2020) by the time of this mention, the Court will give consideration to hearing the Mother’s parenting applications on a final and undefended basis.

4. On 29 July 2020, the Father was directed within 28 days to file and serve his Response, Affidavit and any Notice of Risk in proper form.

5. On 8 March 2021, the parties and ICL appeared by way of Microsoft Teams.  The Father indicated that he had caused, with the assistance of third parties (not lawyers), to prepare an Affidavit, but no other documents.  That is, the Father had not filed a Response or any Notice of Risk.  The Mother’s side and the ICL was served with a copy of that Affidavit sworn/affirmed by the Father on 20 August 2020.  In that Affidavit, inter alia, the Father alleges mental health issues in the Mother, and in this regard refers to alleged self harm by the Mother in 2012.  Further, in this Affidavit, the Father alleges that the Mother from about the time of the Father’s relocation to Australia in 2016, began to control him in a violent manner.  In that Affidavit the Father denies perpetrating family violence against the Mother.  He refers to being served with an interim ADVO in about late December 2016.  The Father alleges that he was not allowed by the Mother to visit the child until he was 14 months of age.  He alleges that he contributed financially towards the maintenance of the child.  He alleges that he was never a bad husband towards the Mother or a bad Father towards the child.  He alleges he was never violent, physically, emotionally or mentally, towards the Mother or the child.  The Father alleges that it has been over 1.5 years now that he has not visited the child.

6. At the above mention on 8 March 2021, the Father told the Court that he was presently in Country B and that he had returned to Country B from Australia because his Mother was there and that he had gone to care for her.  He told the Court that he proposed to return to Australia in mid 2021.  He told the Court that he had booked a ticket to return to Australia.  When the Court asked the Father if he had purchased an air ticket to return to Australia at that time the Father said words to the effect that he would attend to that.  When the Court asked the Father what Orders he sought in relation to the child, the Father told the Court that he wanted to visit the child as soon as possible.

7. At the above mention on 8 March 2021, the Mother’s solicitor indicated to the Court that the Mother, for the purposes of the undefended hearing, would be prepared to not press proposed Order 3 in her Amended Initiating Application filed 22 January 2021 providing that, “That the child spend no time with the Father.”

8. The Court now refers to the extent of the Father’s involvement in these proceedings to date.

9. On 5 June 2019, the Father was directed to file and serve a Response, Affidavit and any Notice of Risk within 28 days.  At this time there was no appearance by the Father.  The Court made a direction to adjourn the proceedings for mention to 23 September 2019, and in the event that the Father did not appear or he had not filed his documents the Court would give consideration to hearing the Mother’s proposed parenting Orders on a final and undefended basis.

10. On 23 September 2019, the Father was directed to file his Response, Affidavit and any Notice of Risk within eight weeks.  On this date the Father appeared.  The proceedings were adjourned for mention to 16 December 2019 with the Court making the same direction, as before, for an undefended hearing if the Father did not comply with the direction.  A notation was made that the Court has told the Father this morning that he should forthwith attend upon the Court’s duty Legal Aid solicitor with a view to him lodging application for Legal Aid representation

11. On 16 December 2019, the Father appeared and the same directions as before were made against the Father together with a direction relating to an undefended hearing and the proceedings were adjourned to 9 March 2020.  A notation was made that the Court has told the Father today plainly that if he is not able to obtain legal assistance or any assistance from third party organisation he will have to complete his Court documents himself.  The Father had informed the Court today that he has been unable to obtain any legal assistance.

12. On 9 March 2020 the Father appeared. The proceedings were adjourned for mention to 15 June 2020.  A direction was made that as soon as the Father becomes aware of the decision of the Legal Aid Review Committee, assuming his appeal is unsuccessful, he shall immediately cause his Response and Affidavit and any Notice of Risk to be prepared and then filed and served in the proceedings.  He shall ensure in this context that his Court documents are filed and served well prior to 15 June 2020.  The Court made its previous directions relating to an undefended hearing if the Father had not complied with the Court’s directions.

13. On 15 June 2020 the Father appeared. An ICL was appointed.  A direction was made that the Father within 28 days file and serve his Response Affidavit and any Notice of Risk in proper form (in this regard the Father should immediately take steps to obtain legal assistance with the duty Legal Aid solicitor at Legal Aid New South Wales).  The proceedings were adjourned to 29 July 2020 for mention.  The Father had informed the Court today that he would seek to obtain the services of his cousin to provide interpreting services for him at the above-mentioned date.

14. On 29 July 2020 the Father appeared.  The Father was directed within 28 days to file and serve his Response, Affidavit and any Notice of Risk in proper form.  The proceedings were adjourned to 22 October 2020 for mention.  An Order was made that should the Father not have filed his Court documents by the time of this mention the Court would give consideration to hearing the Mother’s parenting applications on a final and undefended basis.

15. In the view of the Court, it is in the interests of justice that the matter proceed on an undefended basis, however the Court does not propose to deal with the Mother’s proposed order that the child spend no time with the Father. In the view of the Court, following the Court making final parenting Orders today relating to parental responsibility, the child living with the Mother, the Mother’s proposed section 68B injunction against the Father, and the Mother’s proposed Australian Passports Act 2005 Order, it should be open to the Father, if he chooses, to commence fresh parenting proceedings seeking parenting Orders in relation to spending time with the child.  In particular, the Court is of the view that it is in the interests of justice that the matter proceed on an undefended basis today because:

    a)the Father has had ample opportunity to file and serve his Court documents in Response to the Mother’s documents, even in the absence of having a legal representative to assist him in that regard;

    b)the Father has had third persons available to assist him in preparing his Court documents despite the absence of legal representation;

    c)the Mother’s Affidavit and tender bundle documents, Exhibit A, indicate that the Mother is alleging:

    i)serious family violence having been perpetrated against her and the child by the Father during their relationship,

    ii)she alleges that the Father previously threatened to take the child out of her care,

    iii)she alleges that she is afraid that if the Father is allowed to spend time with the child the Father will become frustrated with him and continue to be physically violent towards the child,

    iv)there is no current ADVO in place protecting the Mother or the child from the Father,

    v)the Mother alleges that she has recently heard that the Father and his family want to take the child overseas to live in Country B so that the child is not raised by the Mother,

    vi)the Mother is afraid for the child’s safety as she has seen the Father’s family watching her at her local shopping centre and she believes they know where the Mother lives,

    vii)the Mother’s tender bundle documents in Exhibit A, inter alia, refer to the Mother being treated by a psychologist for diagnosed depression, anxiety and insomnia, under a mental health care plan, the Mother’s mental health condition was triggered by her dysfunctional marriage to the Father in 2015; the Mother is fearful and frightened of the Father should the Father be granted unsupervised visitation to the child, and importantly the Mother’s case worker/counsellor states that the protracted nature of this Court case has had a detrimental impact on the Mother’s mental health, increasing her level of fear and anxiety, and that she currently lives in a state of hypervigilance and is seeking a final decision from the Court in relation to the child.

16. In relation to this undefended hearing, and again observing that the Father, in the face of previous Court Orders, including the Court’s Orders and directions of 22 October 2020, chose to travel to Country B to allegedly care for his Mother, the Court has had regard to the Father’s recently sworn Affidavit. Again that Affidavit, inter alia, denies the Mother’s allegations of family violence against herself and the child.

17. The Court refers to and adopts the Mother’s chronology set out in her Case Outline.

Relevant legal principles

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

2. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

4. When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

5. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

6. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

7. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The Mother has been the primary carer this child from birth to date.  The child will benefit from a continuance of his meaningful relationship with the Mother.

2. The child probably does not presently have a meaningful relationship with the Father having not spent time with him since October 2018.

3. It is possible that the child may benefit in the future from the development of a meaningful relation with the Father provided it is safe for the child to do so.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. At this undefended hearing, the Court accepts the evidence of the Mother that she and the child were subjected to serious family violence at the instance of the Father, as asserted by the Mother, including coercive and controlling family violence. The Mother’s statements to her mental health treatment providers, including the treatment providers set out in the Exhibit A documents, are consistent with her assertions.  The Mother’s assertions are particularised and detailed.  The Court refers to and takes into account the subpoenaed documents in evidence.  The Father’s Affidavit refers to the Father’s denials of the Mother’s allegations of family violence however they are not persuasive when set against the detailed assertions of the Mother together with her supportive material. The Court observes that previously an interim ADVO was made against the Father for the Mother’s protection.  Further, the Court does not accept the Father’s allegations of controlling behaviour against the Mother.

2. 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

1. Not applicable.

(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)

1. See above under the meaningful relationship primary consideration.

(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

1. The Mother again has been the primary care of the child from birth to date and has attended to the child’s needs satisfactorily.  The Father to date has had limited involvement in the child’s life.

(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

1. The Mother has maintained the child well in her primary care.

(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

1. The Mother’s proposed Orders will not result in any change to the child’s circumstances because the Father is not presently spending any time with the child.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

(f) the capacity of:

i) each of the child’s parents; and

ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The Mother has such capacities.  As to the Father, the Court refers to its discussions above under the primary considerations.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. The parties hail from Country B.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The Mother has demonstrated satisfactory attitudes and discharged her parental responsibilities well. The Court refers to the primary considerations above in relation to the Father.

(j) Any family violence involving the child or a member of the child's family

1. See above.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

1. See above.

(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

1. In the circumstances as previously discussed in these Reasons, including the Father’s failure to abide by Court’s Orders and Directions, and the Mother’s continued fear and hypervigilance of the Father, it is in the best interests of the child that the matter proceeds on an undefended basis, with the exception of the Mother’s proposed Orders relating to the child not spending time with the Father. 

2. Again, the Father, respectfully, if he chooses to do so, can commence fresh proceedings with appropriate evidence seeking parenting Orders allowing him to spend time with the child.  Until he does so, the Mother should not be subjected to further delay in relation to the finalisation of these proceedings; her continued fear and hypervigilance in relation to the Father is likely exacerbated by the prolongation of these proceedings at the instance of the Father and such fear and hypervigilance may well have a detrimental effect on the Mother’s parenting capacity for the child which would not be in the best interests of the child.

m) Any other fact or circumstance that the Court thinks is relevant

1. The Mother seeks a section 68B injunction against the Father for the personal protection of herself and the child.  Taking into account the Mother’s evidence, including her supportive evidence, and as discussed above under the need to protect primary consideration, it will be appropriate for the welfare of the child to make such injunction.  Inter alia, such injunction will likely have the effect of ameliorating to some not insignificant extent the Mother’s fear and anxiety in relation to the Father, and will afford the Mother and child protection in the event that the Father might be minded to approach the Mother and/or child.

2. In relation to the Mother’s proposed Order 6 relating to section 11 of the Australian Passports Act 2005, the Court observes that the Mother has been an Australian citizen since 2010, the Mother has lived in Australia since 2006, in 2019 the Mother was diagnosed with a benign brain tumour which she was being treated by specialist in Australia, the Mother is starting a course at TAFE; the Mother receives Centrelink benefits, the child attends child-care three days a week on the days of the Mother attends TAFE.  The Mother enjoys a positive relationship with her own family in Sydney.

Parental responsibility

1. The Mother has been the primary carer of the child from birth to date and she has been a satisfactory Mother.  The Mother is fearful and is distrustful of the Father.  The Mother and the child have been subjected to serious family violence by the Father. The parties do not communicate.  It is unlikely that the parties could reach agreement in relation to a major decision affecting the child in a timely fashion.  The Mother should have sole parental responsibly for the child and will be in the best interests of the child to make an order accordingly.

Summary

1. Evaluating the above discussed considerations under section 60 CC of the Act, it will be in the best interests of the children to make the following interim Orders:

2. The Mother shall have sole parental responsibility for the child X born in 2017.

3. The child shall live with the Mother. 

4. Pursuant to section 68B of the Family Law Act 1975 (Cth) as an order for the personal protection of Ms Bilal born in 1995 ("the Mother") and X born in 2017 ("the child"), Mr Hamdi born in 1989 ("the Father") be restrained from:

   (a)     being within 200 metres of the Mother or the child;

   (b)contacting the Mother or the child in any way including by telephone, social media, written correspondence or through any third party.

5. In the event that the Father does not comply with the above Order, and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest the Father without warrant pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

6. For the purposes of s 11·Australian Passports Act 2005 (Cth), the Orders above allow:

   (a)The child to travel internationally with the Mother;

   (b)The child to have an Australian passport or travel-related document provided the application for that document is made by the Mother who may sign any declaration on the application in the form approved by the relevant Minister without notice to or the consent of the Father.

NOTATION:

A.Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court notes that the Court or a Registrar may vary or set aside a judgment or Order after it has been entered if the judgment or Order was made in the absence of a party. Any application pursuant to Rule 16.05 by the Father to set aside the above Orders shall be made within three months of today’s Orders.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 10 March 2021