Farid & Barakat
[2022] FedCFamC2F 962
Federal Circuit and Family Court of Australia
(DIVISION 2)
Farid & Barakat [2022] FedCFamC2F 962
File number(s): PAC 2275 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 30 May 2022 Catchwords: FAMILY LAW – interim parenting – Rice & Asplund – whether there has been a sufficient change in circumstances – no sufficient change in circumstances – application dismissed. Legislation: Family Law Act 1975 (Cth) ss.68B, 69ZL
Federal Circuit And Family Court Of Australia (Family Law) Rules 2021 r.2.50
Cases cited: Rice v Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570 Division: Division 2 Family Law Number of paragraphs: 36 Date of hearing: 30 May 2022 Place: Parramatta Solicitors for the Applicant: Michael Jokovic & Associates Solicitors for the Respondent: Somerville Legal Solicitors for the Independent Children’s Lawyer: Mark Macdiarmid Family Law Specialist ORDERS
PAC 2275 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FARID
Applicant
AND: MS BARAKAT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
30 MAY 2022
THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 18 March 2022 is dismissed.
2.The mother’s costs of today fixed in the amount of $1,200 are reserved pending the determination of the substantive proceedings.
3.The substantive proceedings are to be listed on a date to be advised following the release of the Family Report.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Farid & Barakat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
JUDGE OBRADOVIC:
These are short-form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
The principles in respect of interim hearings are well-known including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is required to determine the application before it.
The proceedings concern the parties’ four children:
(a)W born in 2009;
(b)X born in 2010;
(c)Y born in 2012; and
(d)Z born in 2017.
The father applies for orders that he have telephone communication with the children pending further order.
This application is made in circumstances where there is a complex litigation history, in particular, relating to parenting orders.
On 27 May 2020, the Court made interim orders for the children to live with the mother and spend supervised time with the father. The father did not spend any supervised time with the children pursuant to those orders. The orders made on 27 May 2020 also provided for the children to have telephone or video communication with the father three times per week for no more than 20 minutes.
On 7 August 2020, the order for telephone/video communication was suspended. The Court also made injunctive orders pursuant to section 68B, in essence, clarifying the injunctive orders which were made on 27 May 2020.
On 2 October 2020, the Court made orders following an interim hearing that the children spend no time with the father. Reasons for judgment were published at that time.
As is apparent from those reasons, the Court had significant concern for the children should they spend time with the father.
On 30 October 2020, the father filed an appeal against the orders made on 2 October 2020. On 18 November 2020, the father filed an application in the case seeking a stay of the orders made on 2 October 2020 pending the determination of the appeal.
On 24 November 2020, the Court heard and determined the stay application. Oral reasons were given on the day. Notably, the father did not press for a stay of the order for no time, and, by consent, there were some additional orders made in relation to non-denigration and not discussing the proceedings with the children. The appeal was later abandoned.
On 19 January 2021, the father filed a recusal application which was heard on 9 March 2021 and dismissed on 17 March 2021 with reasons being published.
On 27 January 2021, the father filed an application in a case seeking a variation of the interim parenting orders, namely, that the children live with the paternal grandparents and spend time with the parents.
On 29 April 2021, the Court made orders for a family report. The father’s application which was filed in January 2021 was listed for hearing before Senior Registrar AB and, ultimately, dismissed on 13 July 2021, and on 25 January this year, the father was ordered to pay the mother’s costs of that application in the amount of $3,547.
In August 2021, the matter came before Judge Campbell in the winter callover and was referred to dispute resolution. Pursuant to those orders, on 14 December 2021, the parties attended dispute resolution and reached agreement for the parties to attend upon a contact centre and complete the intake process and, if suitable for the children, to start spending time with the father at the contact centre on a supervised basis.
On 22 March 2022, the father filed a fresh application in the proceeding seeking orders for the children to spend time with him starting with four hours each Saturday for a period of three months and ultimately increasing to alternate weekends. That application was first returnable before the Court today on 30 May 2022, when the father sought to amend his application to telephone time only. Given rule 2.50(1)(b)(i) of the Federal Circuit And Family Court Of Australia (Family Law) Rules 2021 (“Rules”), the father was able to proceed on the amended application.
It is not contested that, following the dispute resolution in December 2021, the parties engaged in communication including by text message and also face-to-face as follows:
(a)The father attended Z’s birthday party at a local park in 2022;
(b)The father attended W’s birthday party in 2022;
(c)On 15 January 2022, the father attended the mother’s residence with McDonald’s for the children and spoke to the children on that day;
(d)On 14 February, the father picked W up near the mother’s home and drove him to the mother’s home; and
(e)The children spent about 30 minutes with the father at AC Shopping Centre on 13 March 2022.
These are the limited agreed facts relevant to this application.
The parties are in disagreement as to whether W had run away on 14 February 2022 and/or whether the mother sought the father’s assistance about locating the child.
Furthermore, in a recording taken by a dashcam on the father’s motor vehicle on 14 February 2022, the mother is heard speaking in a raised voice, one might say yelling, at the father to get the child into her car and is seemingly very upset with the child and, presumably, is swearing at the child and/or the father. The father appears to be calm in that video footage or, at least, as far as one might be able to tell from his voice.
The mother, in her affidavit, deposes to her regret in failing to protect the children from exposing them to communications she was having with the father and that she is in no doubt that this has confused the children. The mother says that the 30 minutes the children spent talking with their father on 13 March 2022 was not with her consent but, rather, that the father approached the children unannounced. The father certainly agrees that he saw the children unexpectedly and that the mother was not present. It is unclear to the Court why the children were unaccompanied at a shopping centre.
The rule in Rice & Asplund[1] is one that is concerned with the best interest of the child and one that is applicable to applications to vary interim orders made in the ongoing course of proceedings.
[1] Rice v Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation. The matters to which consideration should be given in order to determine the materiality of the asserted change in circumstances are well-known and may be summarised as follows:
(a)the past circumstances, including the reasons for the decision and the evidence upon which it was based;
(b)whether there is a likelihood of orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, the nature of the changes which must be weighed against the potential detriment to the children caused by the litigation itself.
The father submits to the Court that the children ought to have the benefit of speaking to him, that he can assist the children and the mother by being included in the children’s lives. It is submitted on behalf of the father that the children want the father to be a part of their lives and that he misses them dearly and that they miss him dearly.
The matters which the father raises have by and large been dealt with by the Court previously. The reasons for judgment delivered on 2 October 2020 speak for themselves. The Court was never in doubt that the children love their father.
It is disappointing that, despite the orders which are currently in place, neither parent appears to have at all times been abiding by them.
Those orders were made, ultimately, in the best interest of the children and for their protection. The parents are not obliged to be in the Family Court system. They can, certainly, come to an agreement outside of Court. However, if there are orders in place, the parties are bound by those orders. They must comply with them.
The Court has already voiced significant concerns for these children’s welfare, in particular, as noted at paragraph 117 of the reasons for judgment dated 2 October 2020. The Court’s concerns for the mother to act protectively remain. What has occurred after December 2021 has undoubtedly been very confusing for the children.
There is little utility in an order for no time if the parents do not comply with it.
There is little utility in an order for supervised time if the parents do not comply with it.
There is little utility in injunctive orders if the party the subject of the injunctive orders acts in a way which appears to be a flagrant disregard for those orders and no action is taken to enforce those orders by the party who sought to have those injunctions in place.
These are all matters which the Court will take into account at final hearing and which may be the subject of findings. The parties’ actions in not complying with Court orders in the manner that has occurred here is not a sufficiently changed circumstance to warrant the reopening of an already determined interim issue.
There are no other circumstances which the Court has been pointed to which warrant the reopening of those issues.
The parties are about to embark upon family report interviews and are yet to complete the intake process and partake in supervised time. The father, in bringing this application, appears to be putting the cart ahead of the horse and also appears to be seeking to circumvent the order for supervised time.
The Court did grant the parties the opportunity of having an expedited final hearing, and by “expedited”, the Court means in October 2022, less than five months away from the date of today’s interim hearing. The father did not wish to accept those early dates but, rather, pressed with his application in circumstances where those family interviews are pending and where supervised time has not yet occurred.
The father’s interim application is dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Obradovic. Associate:
Dated: 30 May 2022
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