Carter & Shahid (No 3)

Case [2025] FedCFamC1F 276

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Carter & Shahid (No 3) [2025] FedCFamC1F 276

File number(s): WOC 705 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 1 May 2025
Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where the matter is part-heard – Where the applicant sought to remove the requirement for  professionally supervised time – Where the applicant failed to disclose mental health concerns – Where the respondent contended  that professionally supervised time is still warranted – Where the applicant proposed the two paternal aunts as alternate private supervisors – Where the paternal aunts fail to address or acknowledge the father’s mental health conditions – Where the respondent opposed the paternal aunts as alternate private supervisors – Where the applicant sought a video communication order  – Where the Court made orders for video communication between the applicant and the child – Where the Court otherwise dismissed the applicant’s interim application.
Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61D, 61DAA, 61DAB, 65DAA

Family Law Amendment Act 2024 (Cth)

Marriage Act 1961 (Cth)
Cases cited:

Carter & Shahid [2024] FedCFamC1F 874

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel (No 2) (2010) 43 Fam LR 348;[2010] FamCAFC 101

Melounis & Melounis (No 4) [2024] FedCFamC1F 778

Pickford & Pickford [2024] FedCFamC1A 249

Rasheem & Rasheem [2024] FedCFamC1F 595

SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 83
Date of hearing: 4 April 2025
Place: Sydney
Counsel for the Applicant: Mr Spicer
Solicitor for the Applicant: Vaikom Law
Solicitor for the Respondent: Ms Taheri of Ark Law Lawyers
Solicitor for the Independent Children's Lawyer: Mr Walkden of Walkden Law and Mediation

ORDERS

WOC 705 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SHAHID

Applicant
AND:

MR CARTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

1 MAY 2025

THE COURT ORDERS THAT:

Video communication

1.The applicant father (“the father”) be permitted to communicate with the child, X born 2018 (“the child”) by way of video call twice weekly, on Mondays and Wednesdays at 5:00 pm, or at any other mutually agreed time, for up to 15 minutes per video call.

2.Within 72 hours of the publication of these orders, the mother shall provide the father with all necessary contact details to facilitate the ordered video calls.

3.The respondent mother (“the mother”) shall initiate the video call between the father and the child at the designated times.

Dismissal

4.The remaining orders sought by the father in his Application in a Proceeding filed 30 January 2025 are hereby dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)),…

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AGLC
Carter & Shahid (No 3) [2025] FedCFamC1F 276
Case
[2025] FedCFamC1F 276
Decision Date

CaseChat Overview and Summary

In the case of Mr Shahid and Ms Carter, the father, Mr Shahid, filed an application seeking, among other things, an updated expert report and to remove the requirement for professionally supervised time when spending time with his child, X. The mother, Ms Carter, opposed the application, arguing that professionally supervised time was still warranted due to the father's mental health issues, which he had not disclosed. The father proposed that his paternal aunts be alternate private supervisors, but the mother opposed this proposal. The father also sought a video communication order, which the mother did not specifically address but was presumed to oppose. The court considered the best interests of the child as the paramount consideration and examined the father's mental health, the mother's safety concerns, and the need for professionally supervised time.

The court determined that the father's failure to disclose his mental health concerns raised safety concerns for the child. The court noted that the paternal aunts' proposal did not address the father's mental health conditions, and the mother's opposition to their involvement was justified. The court acknowledged the father's right to communicate with the child and ordered video communication between the father and the child twice weekly, on Mondays and Wednesdays at 5:00 pm, for up to 15 minutes per video call. The court dismissed the father's other requests, including the removal of professional supervision during time spent with the child and the introduction of video communication between the father and the child.

The court made orders for video communication between the father and the child, with the mother initiating the video call at the designated times and providing the father with all necessary contact details within 72 hours of the publication of these orders. The court dismissed the remaining orders sought by the father in his application. The court's decision prioritised the safety and best interests of the child, considering the father's mental health concerns and the mother's opposition to unsupervised time and the proposed private supervisors. The court's order for video communication aimed to maintain a relationship between the father and the child while ensuring the child's safety.

Orders

Orders of the court

WOC 705 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SHAHID

Applicant

AND:

MR CARTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

1 MAY 2025

THE COURT ORDERS THAT:

Video communication

1. The applicant father (“the father”) be permitted to communicate with the child, X born 2018 (“the child”) by way of video call twice weekly, on Mondays and Wednesdays at 5:00 pm, or at any other mutually agreed time, for up to 15 minutes per video call.

2. Within 72 hours of the publication of these orders, the mother shall provide the father with all necessary contact details to facilitate the ordered video calls.

3. The respondent mother (“the mother”) shall initiate the video call between the father and the child at the designated times.

Dismissal

4. The remaining orders sought by the father in his Application in a Proceeding filed 30 January 2025 are hereby dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons for judgment explain the orders that the Court has made regarding X, born 2018 (“the child”) in interim proceedings between the Mr Shahid (“the father”) and Ms Carter (“the mother”) (collectively “the parties”). On 30 January 2025 the father filed an Application in a Proceeding (“the father’s application”) in which he sought orders, amongst other things, for an updated Expert Report and to remove the requirement of professional supervision when spending time with the child. BACKGROUND The father is currently unemployed and aged forty-one. The mother is employed in public service and is presently on leave. She is thirty-five years old. The parties commenced a relationship in early 2017, commenced cohabitation in mid-2017 and separated on a final basis on 21 May 2019. The parties married under Islamic Law in late 2017, however this was never finalised under the Marriage Act 1961 (Cth) as the father was still legally married to Ms B at the time. Ms B and the father formally remarried after the termination of the relationship between the mother and the father. The father and Ms B share four children together, namely, G, F, H, and J. The mother has also since re-partnered and shares a child with her current partner, Mr K. Procedural history Regrettably, this matter has been on foot since July 2019. Thirty-seven orders have been made during the course of the matter, many arising from adjournments and delay. By virtue of the length and complexity of these proceedings, these reasons for judgment will only traverse materially relevant orders and determinations. On 25 February 2020, the Court made interim orders (“the interim orders”) for the child to live with the mother and spend professionally supervised time with the father for two hours per fortnight. The child’s time with the father was to progress to six hours per fortnight after spending gradually increasing intervals of consecutive time with the child. At all times that the father was to spend unsupervised time with the child, changeover was facilitated through a professional service. Further, orders were made restraining the father from allowing the child to be left in the sole care of Ms B and from coming into contact with the mother or within 100 metres of the child’s school or the mother’s residence. On 19 January 2021, Judge Morley imposed a restraint on the father from allowing the child to come into contact with or have any communication with Ms B, on a without prejudice basis. On 17 August 2022, Deputy Registrar Magee transferred the matter to Division 1 of this Court. On 10 July 2023, Judicial Registrar Tomasetti included a notation which detailed that time between the father and child ceased approximately eight weeks prior, and that the mother had filed an Application in a Proceeding on 2 June 2023 that sought for all future time between the father and child be supervised. On 3 August 2023, Senior Judicial Registrar Jenkinson dismissed the mother’s Application in a Proceeding filed 2 June 2023 and ordered that the interim orders remain in force.

Evidence

Evidence Before The Court

The Independent Children’s Lawyer’s Outline of Case Document filed 31 March 2025 (“the Independent Children’s Lawyer’s case outline”) aligned with the mother’s position. Both sought that the current spend time conditions pursuant to the orders made on 11 December 2024, between the father and the child remain in place. Further, an order for an updated Expert Report was also sought. THE EVIDENCE BEFORE THE COURT In support of his case, the father relied upon the following material:(a)Outline of Case Document filed 2 April 2025;(b)Application in a Proceeding filed 3 February 2025;(c)Amended Response to Final Orders filed 31 January 2025;(d)His affidavit filed 30 January 2025;(e)His affidavit filed 31 January 2025, including annexures (marked exhibits C2 – C5);(f)His affidavit filed 9 April 2025;(g)Affidavit of Ms M filed 9 April 2025; (h)Affidavit of Ms N filed 9 April 2025; and(i)Supervised contact reports as attached to the father’s Outline of Case Document filed 2 April 2025, marked Exhibit C1. In support of her case, the mother relied upon the following material:(a)Outline of Case Document filed 3 April 2025;(b)Response to an Application in a Proceeding filed 26 March 2025;(c)Her affidavit filed 9 April 2024;(d)Her affidavit filed 18 February 2025; (e)Her affidavit filed 18 February 2025; and(f)Her affidavit filed 14 April 2025. In support of his case, the Independent Children’s Lawyer relied on the following material:(a)Outline of Case Document filed 31 March 2025; (b)Expert Report of Dr L dated 4 September 2021; and (c)Written submissions filed 16 April 2025.THE APPLICABLE LAW The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA. The objects of Part VII are set out at s 60B:60B Objects of PartThe objects of this Part are:(a) to ensure that the best interests of children are met, including by ensuring their safety; and(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. In regard to parental responsibility, the presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation to children as follows:61D Parenting orders and parental responsibility …(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.

Decision

Reasons for decision

Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:61DAA Effect of parenting order that provides for joint decision-making about major long-term issues(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:(a) to consult each other person in relation to each such decision; and(b) to make a genuine effort to come to a joint decision.(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues. Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:60CC How a court determines what is in a child’s best interestsDetermining child's best interests(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:(a) consider the matters set out in subsection (2); and(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).General considerations(2) For the purposes of paragraph (1)(a), the court must consider the following matters:(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i) the child; and(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);(b) any views expressed by the child;(c) the developmental, psychological, emotional and cultural needs of the child;(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f) anything else that is relevant to the particular circumstances of the child.(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and(b) any family violence order that applies or has applied to the child or a member of the child’s family.(Emphasis in original)

Ratio Decidendi

Legal Principle Established

These conditions would reduce any risk to the child of spending time with the father without professional supervision. The Indepdendent Children’s Lawyer also commented that, if appointed, the paternal aunts should complete an information session for supervisors offered by S Family Services (Independent Children’s Lawyer’s written submissions, paragraph 16). Ultimately, the Independent Children’s Lawyer could only offer a limited, contingent opinion.Alteration of restraint’s imposed on the fatherThe father The father submitted that there is no safety risk to justify the restraints imposed by Order 13 of those made 25 February 2020; a restriction on him approaching within 100 metres of the child’s school. He sought to join the schools “Father’s group” which “hosts regular student inclusive events” (the father’s affidavit, paragraph 32). The father believes that the child’s “emotional well-being and sense of belonging would benefit significantly from [his] attendance” (the father’s affidavit, paragraph 32). Additionally, the father sought the restraint preventing him from coming within 100 metres of the mother’s residence also be removed. The father contended that he is agreeable to a substitute restraint which prevents him from approaching the mother, as on the father’s view the current restraint is an “overreach that risks unintentional breach” (the father’s affidavit, paragraph 34). The mother The mother opposed any amendment to the current restraints imposed on the father. She asserted that she still has ongoing safety concerns which have been exacerbated due to the lack of truthfulness displayed by the father during the course of the proceedings. The mother contended that where the extent of the father’s mental health condition is unknown, that it is not in the child’s best interests to permit the father to attend the child’s school.Introduction of video communication timeThe father The father’s affidavit detailed a history of the parties being unable to agree on an arrangement for the father to communicate by way of electronic means with the child since late 2023 (the father’s affidavit, paragraphs 42-48). The father contends that the child’s should have regular video communication to maintain a relationship with not only the father, but his siblings which reside in the father’s household. The mother The mother’s evidence does not specifically address any electronic communication issue, however given the mother’s proposed dismissal of the father’s application in its entirety, the Court can only assume that the mother opposed any order for video communication. DISCUSSION AND ORDERS MADEUpdated Expert Report The final hearing commencing 5 May 2025 was vacated in circumstances where the volume of previously undisclosed updating material sought to be put to the Single Expert would prevent an updating Expert Report being produced in time. The Court acknowledges that the father submitted that he could obtain a report relating to his mental health from one of his treaters. It is a matter for the father whether he does so or not. From the Court’s perspective and experience, however, a report from treating doctors is often unhelpful as to the ultimate issue of what orders are in the best interests of the child. This is self-evidently the case when the treating doctor or medical health professional is not privy to all the information before the Court and has not met the mother and the child (see e.g. Rasheem & Rasheem [2024] FedCFamC1F 595 at [115]-[123]). The limitations of expert opinions based entirely on self-report of the father is obvious. That is not to say that such evidence would not assist the Court on relevant issues such as that state of the father’s mental health. Indeed, that evidence may well assist the Single Joint Expert to form an opinion as to what orders are in the best interests of the child.