Ember and Assadi

[2013] FCCA 1828

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMBER & ASSADI [2013] FCCA 1828

Catchwords:
FAMILY LAW – Remitted from Full Court of the Family Court of Australia for rehearing – no appearance from father – father resides outside the Commonwealth of Australia – no meaningful relationship between children and father – children to live with mother and spend time with father by agreement – mother permitted to remain in Victoria with children.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS EMBER

Respondent: MR ASSADI

File Number: MLC 6354 of 2011

Judgment of: Judge Hartnett

Hearing date: 6 November 2013

Delivered at: Melbourne

Delivered on: 6 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Grabau

Solicitors for the Applicant: Victoria Legal Aid

The Respondent: No Appearance

Counsel for the Independent Children's Lawyer: Mr Combes

Solicitors for the Independent Children's Lawyer: Agricola Wunderlich & Associates

THE COURT ORDERS THAT:

1. The children [X] born [in] 2008 and [Y] born [in] 2009 (‘the children’) live with the Applicant mother.

2. The children spend time with the Respondent father as agreed between the mother and father.

3. All extant applications are dismissed and the matter is removed from the list of active cases.

AND THE COURT NOTES THAT:

A.The children have been placed on the Airport Watch List by Orders made 2 August 2011 and both parties are restrained from removing them from the Commonwealth of Australia pursuant to those Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6354 of 2011

MS EMBER

Applicant

And

MR ASSADI

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court on remittal from the Full Court of the Family Court of Australia by Orders made 19 July 2013.  In that Full Court decision, the Family Court of Australia ordered that the appeal, which had been filed by the mother on 20 January 2012 be allowed, and that orders 2, 3 and 6 of the Orders made in this Court by Connolly FM (as he then was) on 23 December 2011 be set aside.

2. The Full Court of the Family Court of Australia further ordered, as set out in order 3 of those Orders made 19 July 2013, that the proceedings in relation to “where” the subject children, [X] born [in] 2008 (‘[X]’) and [Y] born [in] 2009 (’[Y]’) (‘the children’), should live with the mother and “what time” they should spend with the father, be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Connolly.  The Full Court of the Family Court of Australia, comprising Finn, Strickland and Ainslie-Wallace JJ, made other orders, providing for the father to spend time with the children, which were in accordance with orders 2 and 3 of the Orders made by Federal Magistrate Connolly (as he then was) on 15 March 2012.

3. On the hearing of the matter this day the father was absent.  The father was called outside the courtroom, and failed to answer the call.  The mother is of the belief that the father is residing in [S], and that he has lived there for a period of some 12 months now.  The children’s only contact with their father, in the period since their father’s departure from the Commonwealth of Australia, has been via Skype, and has been very limited.

4. The Applicant mother and the Independent Children’s Lawyer seek orders this day by agreement.  The orders which they seek, and which the Court shall make, are:-

   “1. The children [X] born [in] 2008 and [Y] born [in] 2009 (‘the children’) live with the Applicant mother.

   2. The children spend time with the Respondent father as agreed between the mother and father.

   3. All extant applications are dismissed and the matter is removed from the list of active cases.”

5. The only additional material before the Court this day (that was not before Federal Magistrate Connolly (as he then was), and the Full Court of the Family Court of Australia) is a Family Report dated 5 October 2013 (‘The Family Report’), prepared by Ms B, psychologist and family consultant, and released to the parties on 7 October 2013.  Ms B interviewed the mother, her partner, the children, [X] and [Y], who are now aged six years and seven months, and four years and two months respectively, and made observations of their various interactions.  A limitation noted in the Family Report of Ms B concerned the father’s absence, and the report writer’s inability to contact him for the purpose of the assessment. That Family Report was ordered by me on 26 July 2013, when the matter was first listed before this Court on remittal.  On that date I also made orders for the appointment of an Independent Children’s Lawyer, who was represented by counsel this day, and orders listing the matter for trial.

History

1. The mother and father met and commenced a relationship in 2006, when they were living in New South Wales.  They married in an Islamic ceremony but without legal status, in 2007, and final separation occurred in late 2010.  After separating the mother and children relocated to Victoria, and the parents negotiated time between the father and children to be spent in both New South Wales and Victoria.  The father is a practicing Muslim, and the mother is not.  The mother is, however, supportive of the children being introduced to the father’s religion in the future.

2. Since the inception of proceedings, initiated by the mother on 18 July 2011 an order has been made that the parties have equal shared parental responsibility for their two children.  That order made by this Court on 23 December 2011 was not set aside by the Orders made by the Full Court of the Family Court of Australia on 19 July 2013. Nor was order 5 of the Orders made 23 December 2011 by this Court, which provided for the mother to have sole parental responsibility for the day to day decisions affecting the children, set aside.

3. No further application has been made to this Court on remittal by either party for other, or differing, parenting orders, in respect of the parties having equal shared parental responsibility of the children. This is the presumption as set out in the Family Law Act 1975 (Cth). Thus, although Ms B recommended in her Family Report that sole parental responsibilities should be given to the mother, the Court will not disturb that order made at final hearing by FM Connolly (as he then was) on 23 December 2011, which were not set aside by the Full Court of the Family Court of Australia, and which was not a matter specifically remitted to this Court. Any application the mother wishes to make for sole parental responsibility should be made on a proper basis, namely the filing and service upon the father of an application and with procedural fairness being afforded to the father.

4. Ms B noted in her Family Report that whilst hostilities have not escalated between the parents, their communication has deteriorated.  They send messages to each other by text or Skype.  Ms B noted at paragraph 5 of the Family Report:-

   “… It seems that the father has indicated to Ms Ember that he is currently living in [T] and no return date can be identified.”

   In submissions made this day, by counsel for the Independent Children’s Lawyer and the mother, the Court was told that the father is probably currently living in [S], where he has family members, including a brother and his two children (born to his Australian-Lebanese wife) whom that brother has taken to [S].  Those children have not seen their mother, who remains residing in Australia, for a duration of some two years.

5. The children in these proceedings have lived with their mother since separation, and the father’s time spent with, and communication had with, his children has been irregular and infrequent.  The mother resides with her de facto partner, and her father, in the same household as the children.  In the period since the proceedings commenced the mother’s father has suffered ill health caused by a stroke.  The mother made the decision to move her father into her home and care for him on a full-time basis.  The initial accommodation they resided in was ultimately unsuitable and the family have recently moved to [R] where they live in a four-bedroom home that is well set up for them all.

6. Since living in [R] the mother has enrolled [X] in kindergarten two days each week and day care two days each week.  [Y] attends day care with his brother for two days each week.  [X] will commence at [omitted] Primary School in 2014. 

7. As said previously in these reasons, the father’s time spent with the children has been minimal, in particular over the last 18 months.  In January 2013 the mother travelled to Queensland for a family holiday and on route delivered the children to the father in New South Wales for a couple of weeks.  The mother’s evidence is that that is the last time the children saw their father face to face.  The father has not made any effort or commitment to travel to Victoria to spend time with the children, and has further made little effort to communicate with them by telephone or other means. This is despite him previously having a warm and loving relationship with them.

8. It is the mother’s belief that the father has been residing overseas for an extended time.  She told the report writer at paragraph 16 of the Family Report that:-

   “… he’s remarried … I suspect he’s overseas trying to organise a Visa with his current wife.”

The Family Report

1. In the Family Report, consideration was given to the role played in the children’s lives by the mother’s de facto partner. The mother’s partner impressed the report writer as an honest and genuine man and a loving and caring partner to the mother and to the children.  He has been in a committed relationship with the mother for approximately three years, and has a good relationship with the children.  He recognised the significance of the children’s relationship with their father and is encouraging of that relationship, although is concerned, as is the mother, with some of the conversations had between the father and children where the father talks about inappropriate matters to the children, denigrates the mother and intimidates the children with discussion about war, bombs and religion.

2. In observing the children with their mother and her partner, the report writer noted in the Family Report as follows:-

   “24. … [The children] presented as confident, relaxed and comfortable in their care…

   25. … [X] reported positively his experience of living with [the mother] and he considered her to be “a good mum … really big a good mum.”

   …

   27. According to [X] he understood his father was: “in [T] … I don’t know if he’s coming back … he’s not coming back for a long time … he’s so far away.”  [X] was pleased to announce “dad told me he has got me presents … lots of presents.”

3. The children presented to Ms B as delightful and engaging youngsters.  She noted the children enjoyed a close and connected relationship with their mother, her partner and her extended family.  There are no concerns about the mother’s parenting commitment and competency, and the family has settled and embraced a nurturing family lifestyle in Victoria since early 2011.  She noted of the father that his commitment to being involved in the future care and upbringing of the parties’ children seemed increasingly questionable, despite the mother presenting as supportive of the children’s right to enjoy a relationship with their father and encouraging of this outcome. 

4. The report writer said at paragraph 32 of the Family report:-

   “The children are well settled with their mother and spend little time with their father.  Communication efforts by [the father] are unreliable.  There is no clear benefit to the children of uprooting them to relocate/return to NSW.  It is recommended that [the mother] and the children be permitted to remain living in Victoria.”

Consideration

1. In respect of the two matters that have been remitted to this Court for rehearing, the Court will permit the mother and children to remain residing in the State of Victoria.  Given the children’s father does not reside in the Commonwealth of Australia and has not done so for a period in excess of 12 months, there is no benefit to the children, in the mother and children being required to relocate back to the State of New South Wales in the event the father may one day return to this country and that State. Further, the mother and children should be permitted to reside where it is the mother determines best for their and her family’s needs. That is currently Victoria but her circumstances may alter in the future requiring a different location.

2. The children are thriving in their current environment and their mother is solely responsible for their care; that includes their physical, emotional and financial care.  The mother demonstrates a commitment to the responsibilities of parenthood which is completely absent in the father.  The children are very young but in the view of the elder child, his mother is a good mother and both boys have a warm and loving relationship with their mother and her partner, and are settled in the household in which they now exist.  It would not be in the children’s best interests to require any relocation of them out of the State of Victoria. 

3. Further, it is not possible to make orders for the children to spend time with their father in any structured way.  Their father has not made himself available for a very long period of time, and is unlikely to do so in the future.  Time spent with the children and the manner of that time spent can only be as agreed between the mother and father given the present factual scenario.  The father has, in effect, abandoned the children. Despite the mother’s encouragement and support of a relationship between the father and the children, the father has chosen at this point in time not to pursue that relationship in any meaningful way. 

4. The Court will make the orders as are sought by the Independent Children’s Lawyer and the mother and remove the proceedings from the list.  The Court notes that the Watch List Order made on 2 August 2011 has throughout the various proceedings continued in operation and was not discharged when the Final Orders were made on 23 December 2011 in this Court, nor was it discharged by the Full Court of the Family Court of Australia on appeal.  For the reasons as set out in the mother’s Affidavit sworn 14 July 2011 filed in support of her Initiating Application, paragraphs 22 to 24 inclusive which I adopt in these reasons, that order shall remain operative.  The mother’s affidavit sworn 14 July 2011, paragraphs 22 to 24 inclusive is as follows:-

   “22:  The Father has told me that he has a lot of connections in Saudi Arabia. He comes from a wealthy family and attended an exclusive [country omitted] boarding school. He has consistently expressed to me the importance of his faith and culture to him and that he wants the children to have the same feelings as him; to be devout Muslims.

   23. The children do not have passports.  However this is not a comfort to me. As previously stated the Father has told me that he is from a wealthy family who currently reside in [S]. He has told me that the father is very important. I.am concerned that the children could be removed from the country due to the family's status in [S].

   24. The father remains a [S]n citizen and holds a [S]n passport. Whilst living in Australia he has travelled to [S] before commencing the relationship with me. The family often travels. His brother and his two children are in [S] at the moment and have been there for at least two years. Those children have not seen their Lebanese Australian mother, who remains in Australia for that entire period."”

5. Further, the father’s absence from this country and movement between the Commonwealth of Australia and [T] and/or [S] make it necessary for the continuation of those orders. I shall put a notation on the orders made this day that that earlier Watch List Order of 2 August 2011 continues in full force and effect.  The proceedings are otherwise dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 14 November 2013