Davoud & Davoud

Case [2024] FedCFamC1F 209

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Davoud & Davoud [2024] FedCFamC1F 209

File number: MLC 14518 of 2022
Judgment of: MCGUIRE J
Date of judgment: 10 April 2024
Catchwords: FAMILY LAW – PARENTING – Where the matter proceeded undefended in the absence of the husband – Where the husband has not complied with procedural orders – Where the husband has a limited relationship with the children – Allegations of family violence – Allegations of substance abuse – Orders made for the wife to have sole parental responsibility – Orders that children to live with the wife – Orders for the children to spend time-with the husband as agreed
FAMILY LAW – PROPERTY – Where the matter proceeded undefended in the absence of the husband – Where the husband has not complied with procedural orders – Assessment of contributions – Orders there be a division of the parties’ property in terms of the orders sought by the wife
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 75 and 79
Cases cited:

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Division: Division 1 First Instance
Number of paragraphs: 66
Date of hearing: 19 March 2024
Place: Melbourne
Counsel for the Applicant: Mr Schmidt
Solicitor for the Applicant: Taussig Cherrie Fildes
Solicitor for the Respondent: Litigant in Person - no attendance

ORDERS

MLC 14518 of 2022

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

MS DAVOUD

Applicant
AND:

MR DAVOUD

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:

1.The Further, Further Amended Initiating Application for parenting and property orders, filed 31 January 2024, proceed undefended the husband, Mr Davoud (“the husband”).

PARENTING

2.Ms Davoud (“the wife”) have sole parental responsibility for the children X born 2010 and Y born 2014 (collectively “the children”).

3.Within fourteen (14) days of any major long-term decision made by the wife in relation to the children, the wife provide written notice of her decision to the husband.

LIVE WITH

4.The children live with the wife.

SPEND TIME WITH

5.For any period of time the husband is in Australia, the children spend time with the husband at times to be agreed in writing.

COMMUNICATION

6.The wife facilitate the children communicating with the husband by telephone, Skype, FaceTime or the equivalent as follows:

(a)not less than once a week at times to be agreed by the parties and in the absence of agreement at 7.00pm on Sunday in the time zone the children are in at that time; and

(b)as initiated by the children in accordance with the children’s views and preferences.

DRUG USE

7.The husband be and is hereby restrained from:

(a)consuming or using illegal drugs and using marijuana, cannabis or cannabis products (even if legal and/or prescribed):

(i)at times the children are in his care whether supervised or otherwise or when the children communicate with him in accordance with order…

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AGLC
Davoud & Davoud [2024] FedCFamC1F 209
Case
[2024] FedCFamC1F 209
Decision Date

CaseChat Overview and Summary

In the matter of Davoud & Davoud, the Federal Circuit and Family Court of Australia was tasked with making parenting and property orders following the separation of the parties, Ms Davoud and Mr Davoud. The husband did not participate in the proceedings, which proceeded undefended in his absence. The central issues before the Court were the allocation of parental responsibility for the couple's two children, the living arrangements for the children, and the division of the parties' property. The Court considered the best interests of the children as the paramount consideration, guided by the relevant statutory provisions and principles outlined in the Family Law Act 1975 (Cth).

In reaching its decision, the Court found that the husband had chosen to reside in Country B and had effectively delegated the care of the children to the wife. The children's communication with the husband was sporadic, and he provided no actual or financial support for the children. The wife had assumed the role of the primary or sole parent, managing all aspects of the children's support and care. Given the husband's limited involvement and his historical issues with substance abuse and volatile behaviour, the Court determined that it was in the children's best interests for the wife to have sole parental responsibility. The children were ordered to live with the wife, with provisions for supervised visitation with the husband when he was in Australia. Additionally, the Court made orders to restrict the husband's drug use and to facilitate communication between the children and their father.

Regarding the division of property, the Court assessed the contributions of both parties and ordered a property settlement in favour of the wife, including a specific allocation from the husband's superannuation. The wife was granted ownership of certain real property and personal items, while both parties were to forgo claims to each other's superannuation and other benefits. The Court also included provisions for the management and communication of the children's passports and other personal information.

The Court's final orders provided for the wife to have sole parental responsibility for the children, outlined specific arrangements for the children to live with the wife and spend time with the husband, and detailed the division of the parties' property. The husband was further restrained from various activities, including drug use in the presence of the children and the unauthorised application for passports for the children. The wife was authorised to provide copies of the orders to relevant parties, including the children's schools and healthcare providers.

Orders

Orders of the court

MLC 14518 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DAVOUD

Applicant

AND:

MR DAVOUD

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:

1. The Further, Further Amended Initiating Application for parenting and property orders, filed 31 January 2024, proceed undefended the husband, Mr Davoud (“the husband”).

PARENTING

2. Ms Davoud (“the wife”) have sole parental responsibility for the children X born 2010 and Y born 2014 (collectively “the children”).

3. Within fourteen (14) days of any major long-term decision made by the wife in relation to the children, the wife provide written notice of her decision to the husband.

LIVE WITH

4. The children live with the wife.

SPEND TIME WITH

5. For any period of time the husband is in Australia, the children spend time with the husband at times to be agreed in writing.

COMMUNICATION

6. The wife facilitate the children communicating with the husband by telephone, Skype, FaceTime or the equivalent as follows:

(a) not less than once a week at times to be agreed by the parties and in the absence of agreement at 7.00pm on Sunday in the time zone the children are in at that time; and

(b) as initiated by the children in accordance with the children’s views and preferences.

DRUG USE

7. The husband be and is hereby restrained from:

(a) consuming or using illegal drugs and using marijuana, cannabis or cannabis products (even if legal and/or prescribed):

(i) at times the children are in his care whether supervised or otherwise or when the children communicate with him in accordance with order 6;

(ii) for 24 hours prior to the children being in his care whether supervised or otherwise or when the children communicate with him in accordance with order 6.

(b) permitting any other person doing so (per order 7) in his company while the children are in his care whether supervised or otherwise or when the children communicate with him in accordance with order 6;

(c) permitting any drug-affected person from being in the children’s presence whether in person or via by telephone, Skype, FaceTime or equivalent; and

(d) having such drugs or drug equipment visible or accessible to the children whether in person or via telephone, Skype FaceTime or equivalent.

8. If the husband seeks at any time to spend time with the children face to face, whether supervised or otherwise, there be orders that require him to make an appointment and attend for hair follicle testing and urine screening at an authorised pathology service or laboratory (“pathology services”) for drug testing purposes and in respect thereof:

(a) collection is to be conducted by a qualified and certified collector;

(b) chain-of-custody procedure is to be applied to the sample;

(c) testing is to be conducted at an approved laboratory, accredited to conduct drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory; and

(d) either head or body hair may be collected for testing and in respect thereof:

(i) the urine screening must occur not less than six hours prior to any spend-time period as and when randomly requested by the wife;

(ii) the hair follicle test must occur when requested by the wife on no more than four occasions each year to be undertaken for the purposes of detection of each of the following substances:

A. alcohol;

B. amphetamine, methamphetamine, MOMA and amphetamine-type substances and their metabolites;

C. cannabis and its metabolites;

D. cocaine and its metabolites;

E. opioids and their metabolites; and

F. benzodiazepines and their metabolites.

SCHOOL

9. The wife be permitted to provide a copy of these orders to any school attended by the children.

INFORMATION

10. Each of the wife and husband keep the other informed of their residential address, mobile and landline telephone number (if applicable) and email addresses and forthwith notify the other parent within fourteen (14) days of any anticipated and/or actual change to those details.

PASSPORTS

11. The wife be permitted to apply for, obtain and renew an Australian passport for each of the children notwithstanding the consent of the husband has not been obtained.

12. The passports for the children, including any renewal passport once issued, be held by the wife.

INJUNCTIONS

13. The husband, by himself, his servants and/or agents be and is hereby restrained by injunction, from applying for any Country B or Australian passport for the children without first obtaining the written consent of the wife.

14. The husband, by himself, his servants and/or agents be and is hereby restrained by injunction, from removing or attempting to remove or causing or permitting the removal of the children from Australia.

PROVISION OF INFORMATION

15. The wife and husband each:

(a) notify the other of any medical emergency, serious illness or serious injury suffered by the children requiring medical treatment or hospitalisation while the children are in their respective care; and

(b) be authorised to provide a sealed copy of these orders to:

(i) any hospital, medical, dental or other allied health professional attended by the children;

(ii) any State or Federal Government Department;

(iii) the children’s schools;

(iv) any provider of extra-curricular activities undertaken by the children; or

(v) a financial institution.

PROPERTY

SUPERANNUATION

16. A base amount of $31,642 (“Base Amount”) be allocated as required by section 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the entitlement of the husband (born 1979/customer number …) in Superannuation Fund 2 (“the Fund”).

17. Pursuant to section 90XT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s interest in the Fund the Trustee of the Fund, C Ltd (Australia) Ltd (“the Trustee”) pay to the wife the Base Amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“FL Regulations”) and there be a corresponding reduction, in the husband’s entitlement in the Fund.

18. Order 17 hereof has effect from the operative time being the fourth business day after service of these orders upon the Trustee.

19. The Trustee in accordance with the obligations set out under the Act and the FL Regulations, do all such acts and things and sign all documents as may be necessary to make payment to the wife pursuant to order 17 of these orders.

20. The wife do all such acts and things necessary, including but not limited to exercising her request pursuant to rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (“SIS Regulations”) for the rollover or transfer of the payment split created by order 17 out of the Fund to a fund of the wife’s choosing in accordance with rule 7A.12 of the SIS Regulations.

21. Pursuant to regulation 14F of the FL Regulations any payment from the husband’s entitlement in the Fund made after the Trustee has rolled over the payment split created by order 17 to a fund of the wife’s choosing are not splitable payments.

OTHER

22. Upon completion by the husband with his obligations pursuant to orders 16 to 21 the wife indemnify the husband in respect of all debt and liability of the parties to Ms D.

23. Save as otherwise provided and save for the purpose of enforcement of these and any other subsequent orders:

(a) each party be solely entitled to the exclusion of the other, all property (including choses in action) in possession of, or owned by, that party, or to which that party is otherwise entitled at the date of these orders and without limiting the generality thereof:

(i) the wife retain absolutely unto herself and free of all claim by the husband:

A. the real property situate at and known as E Street, Suburb F in the state of Victoria more particularly described as the whole of the land comprised in certificate of title volume … folio … (“E Street”);

B. her Motor Vehicle 1;

C. the contents of E Street; and

D. funds standing to her credit in bank accounts.

(ii) the husband retain absolutely unto himself and free of all claim by the wife the funds standing to his credit in bank accounts.

(b) each party forgo any claim they each have to superannuation, long service leave, redundancy, retirement, retrenchment, and the like benefits, belonging to, or earned by, the other party;

(c) each party forgo any claim they may have to inheritance or compensation payments to which the other party is entitled to either presently or in the future;

(d) insurance policies remain the sole property of the named owner; and

(e) each party be solely liable for, and indemnify the other party against, any liability encumbering any item of property to which that first party is entitled pursuant to these orders.

24. The wife have leave to apply to the Court in respect of the implementation of the orders.

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).

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.

Background

Background to the litigation

The wife relies on her Trial Affidavit and Financial Statement both affirmed 31 January 2020. She also relies on a Notice to Admit document provided to the husband on 21 December 2023 to which there has been no response and hence the facts are deemed admitted.BACKGROUND FACTS The wife is 43 years of age. She is a health professional. The husband is 44 years of age. He is an IT professional. He has resided in Country B since early 2022. The parties commenced cohabitation in 2005 and were married in 2007. The two children, X and Y, were born 2010 and 2014 respectively. The parties separated on 26 November 2021 contemporaneously with the wife obtaining an intervention order against the husband for the protection of herself and the children.PARENTING – THE RELEVANT LAW Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides for parenting matters where s 60CA offers that the best interests of the children are to be the paramount consideration for the Court in determining parenting and living arrangements for those children. In determining the children’s best interests the Court is mandated to reference the probative evidence and the parties’ proposals to the numerous factors set out at s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out at s 60B as follows:(1)The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d)parents should agree about the future parenting of their children; and(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). Section 61DA of the Act provides a presumption that it be in children’s best interests for their parents to exercise equal shared parental responsibility for those children. “Parental responsibility” is usually understood as being the important and long-term decisions that parents make for children in respect of matters such as education, religion, medical procedure and the like and as opposed to the more mundane day-to-day decisions that parents make for their children. The presumption of equal shared parental responsibility does not apply where the Court is satisfied that there has been child abuse or family violence. Alternatively, the presumption may be rebutted on evidence satisfying the Court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility.

Evidence

Evidence Before The Court

The wife seeks orders which would ultimately give her 80 per cent of the net value of the parties’ tangible property together with a superannuation split of a base amount of $31,642 from the husband’s superannuation. This constitutes a 53.8 per cent split of that superannuation.THE EVIDENCE The wife relies on her Trial Affidavit and Financial Statement both affirmed 31 January 2020. She also relies on a Notice to Admit document provided to the husband on 21 December 2023 to which there has been no response and hence the facts are deemed admitted.BACKGROUND FACTS The wife is 43 years of age. She is a health professional. The husband is 44 years of age. He is an IT professional. He has resided in Country B since early 2022. The parties commenced cohabitation in 2005 and were married in 2007. The two children, X and Y, were born 2010 and 2014 respectively. The parties separated on 26 November 2021 contemporaneously with the wife obtaining an intervention order against the husband for the protection of herself and the children.PARENTING – THE RELEVANT LAW Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides for parenting matters where s 60CA offers that the best interests of the children are to be the paramount consideration for the Court in determining parenting and living arrangements for those children. In determining the children’s best interests the Court is mandated to reference the probative evidence and the parties’ proposals to the numerous factors set out at s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out at s 60B as follows:(1)The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d)parents should agree about the future parenting of their children; and(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The husband has chosen to live in Country B. In this sense he has delegated the care of the children to the wife. The children’s communication with the husband is sporadic. The wife has by delegation assumed the role of primary or sole parent. She is solely responsible for the children’s actual and financial support without assistance from the husband.Section 60CC(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:i either of his or her parents; oriiany other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living; The wife maintains communicative contact between the children and the husband and continues to encourage such contact. Further, should the husband return to Australia then the wife proposes direct contact between the children and the husband, albeit supervised given the husband’s historical drug use and volatile behaviour including in the presence of the children.Section 60CC(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis; The husband has not participated in these proceedings other than occasional attendances to court by Microsoft Teams. He has not prosecuted an application to spend direct time with the children. As such, the subsection is not therefore relevant.Section 60CC(3)(f) the capacity of:i each of the children’s parents; andii any other person (including any grandparent or other relative of the children);to provide for the needs of the children, including emotional and intellectual needs; By reason of her delegated obligations, the wife is deemed to have a capacity to attend to the children’s needs. The wife’s affidavit material discloses that the wife has a demonstrated capacity to attend to the children’s physical, intellectual and emotional needs. Notably, the wife has maintained the channels of communication between the children and their father. To the contrary, the husband has no recent demonstrated capacity to attend to the children’s needs. He has chosen to live away from the children. He provides no actual or financial support for the children. He suffers historical issues with substance abuse and has exhibited self-harm and suicidal tendencies including in the presence of the children.Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant; This is not a relevant consideration.Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:ithe children’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); andiithe likely impact any proposed parenting order under this Part will have on that right;