Dursun & Hamdi
[2024] FedCFamC2F 1668
•12 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dursun & Hamdi [2024] FedCFamC2F 1668
File number(s): SYC 2919 of 2022 Judgment of: JUDGE STREET Date of judgment: 12 November 2024 Catchwords: FAMILY LAW – PARENTING – agreed by consent except for restraint concerning third party- restraint imposed- no order as to costs of ICL. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 5 Date of hearing: 12 November 2024 Place: Sydney Counsel for the Applicant: Mr T Gabriel Solicitor for the Applicant: Sophie Zhang Lawyers Counsel for the Respondent: Ms S Trad Solicitor for the Respondent: Meridian Legal Counsel for the Independent Children's Lawyer: Mr s Hegedus Solicitor for the Independent Children's Lawyer: Jwp Lawyers ORDERS
SYC 2919 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DURSUN
Applicant
AND: MS HAMDI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
12 NOVEMBER 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
Decision Making Responsibility
1.The mother have sole decision-making responsibility with respect to all educational matters regarding X born in 2017 and Y born in 2018 (hereinafter referred to as “the children”), with the mother to inform the father of any decision made exercising this responsibility as soon as reasonably practicable, but no later than seven (7) days after the making of such decision.
2.The mother and father have joint decision-making responsibility for all other long-term decisions for the children.
3.In the event the father is found guilty of the criminal charges he currently faces, being illicit drugs charges, File Number …, Order 2 be suspended, and the mother have sole decision-making responsibility for all long-term decisions affecting the children.
Live and Spend Time Arrangements
4.The children shall live with the mother.
5.The children shall spend time with the father as follows:
(a)For a period of three months from the making of these Orders, every second Friday from the conclusion of Language B school at 5:30pm or from 5:30pm in the event the children do not attend Language B school, to 6pm on Saturday;
(b)Upon the expiration of the three-month period in order 5(a) and continuing the same fortnightly arrangement, every second Friday at the conclusion of Language B school until Monday at the commencement of school, or 9am in the event that the children do not attend school;
(c)On the weeks that the father is not due to commence spending time with the children in accordance with Orders 5(a) and 5(b), the father shall spend time with the children from after school on Thursday until 8:30pm and the father shall ensure that X attend extracurricular activities during the terms that she is enrolled into same, from 5pm to 6pm (at Suburb C sports centre)
(d)From 9am to 5pm on the Sunday of Father’s Day in the event that the children are not otherwise spending time with the father pursuant to these Orders;
(e)On the Father’s birthday each year from 9am until 5pm if such a day falls on a non-school day or from 4pm until 6:30pm if such day falls on a school day;
(f)On the children’s birthday if the father is not already spending time with the children in accordance with these Orders, from 9am to 1:30pm if the day is a non-school day or from 4pm to 6:30pm if the day is a school day
(g)For the purposes of school holidays in terms 1, 2 and 3 of the school year:
(i)From 2025 and each alternate year thereafter, for the first half of the holidays with the time to commence at 3pm on Friday on the last week of the school term, and to conclude the following Sunday at 5pm;
(ii)From 2026 and each alternate year thereafter, for the second half of the holidays with the time to commence at 9am on the middle Sunday of the school holidays, and to conclude at 9am on the Monday of the first school week, regardless of whether this day is a pupil-free day.
(h)For the purposes of school holidays in term 4 of the school year;
(i)From 2025 and each alternate year thereafter, for the first half of the school holidays, with the time to commence at 3pm on Friday of the last week of the school term and to conclude at 5pm on the Sunday of the third week of the school holiday period;
(ii)From 2026 and each alternate year thereafter, for the second half of the school holiday period, with the time to commence at 9am on the Sunday of the third week of the school holiday period, and to conclude at 9am on the Monday of the first school week, regardless of whether this day is a pupil free day.
(i)At any other times as agreed in writing between the parties
6.Notwithstanding any other Order:
(a)The mother shall spend time with the children from 4pm on Christmas Eve to 4pm Christmas Day each year;
(b)The father shall spend time with the children from 4pm on Christmas Day to 4pm on Boxing Day each year;
7.The father’s time with the children is suspended:
(a)On the Sunday of Mother’s Day from 9am to 5pm in the event that the children are spending time with the father in accordance with these Orders;
(b)On the mother’s birthday from 9am to 5pm in the event the birthday falls on a non-school day, or from 4pm to 6:30pm if the birthday does fall on a school day; and
(c)On the children’s birthday from 9am to 1:30pm if the birthday falls on a non-school day or from 4pm to 6:30pm if the birthday does fall on a school day.
8.The father’s time pursuant to Order 5 is contingent upon the father engaging with an appropriately qualified treating practitioner on a minimum of a monthly basis, in accordance with recommendations of the Family Report of Dr D, dated 30 November 2023, with the father to provide evidence of the scheduled appointment with the relevant treating practitioner to the mother by way of email within twenty-four (24) hours of the appointment being set.
9.In the event the father is found guilty of the criminal charges he currently faces, being illicit drugs charges, File Number …, the father’s time with the children in accordance with Order 5 is suspended, and the father shall have time with the children via Audio Visual Link on a fortnightly basis on a Saturday or a Sunday:
(a)With the mother to be given at least seven (7) days’ written notice of the scheduled call;
(b)The father be permitted to arrange for written notice to be given through the paternal grandmother Ms E and Ms F; and
(c)The mother shall arrange for the children to be collected by the paternal grandmother or paternal aunt from 10am on the day of the scheduled AVL and returned to her by 4pm on the same day of the scheduled AVL
10.For the purposes of these Orders, the father be granted leave to provide a copy of the Family Report of Dr D to his treating practitioner.
Changeover
11.For the purposes of the father’s time with the children, unless otherwise stated by these Orders:
(a)The father shall collect the children from the mother at G Store in Suburb H;
(b)The mother shall collect the children from the G Store in Suburb H at the conclusion of the father’s time with the children;
(c)Unless otherwise agreed between the parties, the mother and father shall be responsible and in personal attendance for delivery and return of the children for the father’s spend time occasions in accordance with these Orders.
Passports for the Children and International Travel with Children
12.The mother and father shall, within thirty (30) days of the making of Orders, do all things necessary, sign all forms and documents and pay relevant fees required to apply for an Australian Passport for each X and Y.
13.The mother and father shall split the cost of the Passport Applications for the children equally between them.
14.Once the Australian Passports for the children have been issued, said passports for the children shall, at all times, be held by the mother unless the children are travelling internationally with the father.
15.In the event the father does travel internationally with the children, upon providing written notice to the mother of his travel plans, including travel itinerary, accommodation information and contact information for the children while they are overseas, no later than sixty (60) days prior to the date of intended travel.
16.Upon the father’s compliance with Order 15, the mother shall provide the passports for the children to the father, with the father to return the passports to the mother upon arrival in Australia and return of the children into the mother’s care in accordance with these Orders.
17.In the event the mother does travel internationally with the children, the mother shall provide written notice to the father of her travel plans, including travel itinerary, accommodation information and contact information for the children while they are overseas, no later than sixty (60) days prior to the date of intended travel.
18.In the event that the father is found guilty of the criminal charges he currently faces, being illicit drugs charges, File Number … and is incarcerated, the consent of the father in relation to obtaining new passports for the children in the event that they expire during the time the father is incarcerated, be dispensed with, and:
(a)Pursuant to s11 of the Australian Passports Act 2005 (Cth) the Minister issues an Australian passport in the name of X (born in 2017) and without the necessity of obtaining the consent of the Father for that purpose;
(b)Pursuant to s11 of the Australian Passports Act 2005 (Cth) the Minister issues an Australian passport in the name of Y (born in 2018) and without the necessity of obtaining the consent of the Father for that purpose.
Other Orders
19.Each parent will authorise and do all things and sign all documents and give all consents necessary to enable any relevant health or educational professional to provide to each parent copies of reports and any other information, documentation relevant to the children’s health and education, and to record each parent details as emergency contact persons for the children.
20.The mother and father provide each other with information of their current residential address, telephone number and email address and notify each other of any changes to such information within 24 hours of the change occurring.
21.The mother and father be restrained from criticising or denigrating one another in the presence or hearing of the children.
22.The mother shall continue attendance upon her treating counsellor in accordance with the recommendations made by her counsellor and her treating general practitioner.
23.The parties shall ensure that the children engage upon appropriate treating practitioners in accordance with the mental health care plans obtained by the mother, following the recommendations of Dr D and leave be given to the parties to provide a copy of Dr D’s report to the treating practitioner for each of the children.
24.As soon as reasonably practicable but no later than forty-eight (48) hours’ of being notified of the outcome, the father shall notify the mother of the verdict and/ outcome of his criminal matter (File Number …) in writing.
THE COURT ORDERS THAT:
25.The Applicant is restrained from permitting the children to be in a vehicle driven by Ms J, unless the father is also in the vehicle and the Applicant is further restrained from leaving the children under the sole supervision of Ms J for more than two hours.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are parenting and property proceedings that were commenced on 3 May 2022. The parties have substantially agreed upon final parenting orders, except for one issue relating to, Ms J, who appears to have an association with the applicant father (“The father”). The proposed final consent orders reflect both parties understanding of the importance of prioritising the best interests of the children. The one issue that remains in dispute is whether there should be a restraint in relation to the father permitting Ms J to drive the children when he is not in the vehicle or to leave the children unsupervised with Ms J for more than two hours.
The respondent wife (“the wife”) has taken the Court to an interview with the father with the police. Mr Gabriel, on behalf of the father, contended that the Court should restrict or limit the use of that interview. As the matter before me concerns a parenting proceeding, it is not appropriate to restrict them in the way advanced by Mr Gabriel. The police interview transcript of mid-2022 makes clear that the father has identified a driving incident in which he was involved and expressed concerns in relation to Ms J that she has poor eyesight and may have taken too much of her medication and could have fallen asleep behind the wheel. In these circumstances that have been identified, the Court in relation to determining what parenting order should be made must apply s 60CC of the Family Law Act 1975 (Cth) (‘the Act’). In that regard, the Court under ss(2)(a) of the Act must identify and advance arrangements that would promote the safety of the children. The orders being sought by the mother best promotes the safety of the children. The Court is not in a position, because of the absence of evidence from the father, to properly assess the circumstances in respect of the incident identified in the police interview.
The police interview transcript of the father is proper information to consider to try and ensure that the obligations identified under s 60CC of the Act and that the whole of its provisions are given effect. The Court has considered object in s60B of the Act and the principles in s 69ZN of the Act. The Court is satisfied that the order being sought by the mother best promotes the safety of the children. or
The Court has before it the evidence in relation to financial circumstances of the parties. The Court declines to make an order under s 117 of the Act in favour of the ICL taking into account the financial circumstances of the respective parties.
It is for these reasons the Court makes the above orders.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 25 November 2024
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