Farina and Naima

FAMILY COURT OF AUSTRALIA

FARINA & NAIMA

[2017] FamCA 27

FAMILY LAW – CHILDREN – Interim parenting orders – Whether it is in the child’s best interests to have face to face time with the father on specific dates and times – Application declined.
FAMILY LAW – CHILDREN – Interim parenting orders – Application for an injunction restraining the father from entering, remaining at or attending at the mother’s home, the child’s school and the child’s extracurricular activities – Application granted.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Farina

RESPONDENT:

Mr Naima

INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

FILE NUMBER:

BRC

9358

2014

DATE DELIVERED:

18 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

18 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITOR FOR THE APPLICANT:

Maguire Barnes Family Lawyers

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harding

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Carter, Carter Farquar Mediation & Family Law

Orders

Amended on 25 January 2017 pursuant to rule 17.02 of the Family Law Rules 2004

IT IS ORDERED BY CONSENT BY WAY OF INTERIM PARENTING ORDER THAT

In the terms of the Minute of Order Annexure “A”.

AND IT IS FURTHER ORDERED BY WAY OF INTERIM PARENTING ORDER THAT

Unless otherwise agreed between the parties in writing the Father be restrained and an injunction issue restraining him from entering, remaining at, or attending the following places:
a.the mother’s residence at B Street, Suburb C in the State of Queensland; and
b.the child’s school being D School in the State of Queensland; and
c.the child’s extra-curricular activities (including but not limited to gymnastics training and competitions).
For the purpose of Order (2)(c), the Mother inform the Father of the location of any extra-curricular activities in which E will be participating, with such notification to occur in writing by email sent no less than 24 hours before that extra-curricular activity occurs.

AND IT IS FURTHER ORDERED THAT

The original Minute of Order signed by the parties be placed and kept on the Court file.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

ANNEXURE “A”

MINUTE OF ORDER

IT IS ORDERED BY CONSENT BY WAY OF INTERIM PARENTING ORDER THAT

Discharge of Previous Orders

All previous orders insofar as they relate to parenting matters be discharged.

Parental Responsibility

Subject to these Orders, the Mother is to have sole parental responsibility for the major long term issues relating to the child E born … 2009 (‘the child’).
Save for in the event of genuine emergency, the Mother shall:
(a)notify the Father via email prior to making a decision about a major long term issue in relation to the child, and invite the Father to indicate his views by sending an email reply to the Mother within seven (7) days;
(b)provide a copy of that email contemporaneously to the Independent Children’s Lawyer;
(c)give consideration to any email reply received from the Father within the said seven (7) day period prior to making a decision; and
(d)inform the Father via email of her decision once made.
For the purposes of responding to any email sent by the Mother to him in compliance with her obligations pursuant to Order (3)(a) hereof, the Father shall be at liberty to send one email (only) in reply within seven (7) days of the Mother sending that email to him. Should the Father send an email reply to the Mother, he shall provide a copy of that email contemporaneously to the Independent Children’s Lawyer.
In the event of genuine emergency, the Mother shall:
(a)be at liberty to make decisions in the exercise of her sole parental responsibility without reference to the Father; and
(b)inform the Father via email of the said emergency and the decisions made by her, within forty-eight (48) hours of such decision being made.
The Mother be restrained and an injunction issue restraining her from changing the child’s name without first obtaining an Order of the Court, or the Father’s written consent, to do so.

Live with and spend time with arrangements

The child live with the Mother.
The child spend time with and communicate with the Father as agreed between the parents and failing agreement in accordance with these Orders.
The Father is at liberty to post to the Mother’s preferred postal address age-appropriate cards, letters, photographs, and gifts for the child (including but not limited cards, letters, photographs and gifts for the child from the child’s extended paternal family).
The Father shall be at liberty to telephone the child or contact the child via Skype between 5:00 pm and 7:00 pm each Tuesday.
In the event the child does not spend face to face time with the Father on the following special occasions, the Father shall be at liberty to telephone the child or contact the child via Skype between 5:00 pm and 7:00 pm on:
(a)the first day of religious holy period;
(b)the last day of religious holy period;
(c)Religious holy day;
(d)Religious holy day 2;
(e)the child’s birthday;
(f)the Father’s birthday; and
(g)Father’s Day.
In the event the child does not speak with the Father between 5:00 pm and 7:00 pm on any Tuesday or on a special occasion as mentioned in Order (11) hereof as a result of a telephone or Skype call being missed, the Mother shall arrange for, facilitate and initiate one telephone call between the child and the Father between 6:00 pm and 6:30 pm on the Wednesday which falls one day later.
In the event the child does not speak with the Father between 5:00 pm and 7:00 pm on any Tuesday or on a special occasion as mentioned in Order (11) hereof for any reason, the parties (either personally or through a solicitor) are to notify the Independent Children’s Lawyer via email as to their understanding of the reason a telephone or Skype call did not take place.

Therapeutic sessions

Each of the parents shall attend upon Dr F, a Social Worker (Dr F), at such times and for such periods as may be requested by Dr F for the purposes of:
(a)individual sessions; and/or
(b)sessions to be undertaken by one parent with the child.
The parents are to facilitate the child’s attendance upon Dr F at such times and for such periods as may be requested by Dr F for the purposes of:
(a)individual sessions; and/or
(b)sessions to be undertaken by the child with one of the parents.
Unless otherwise recommended in writing by Dr F:
(a)therapeutic sessions between the Father and the child are to occur once per fortnight for a period of one (1) hour for at least four (4) further sessions;
(b)the arrangements shall thereafter progress to the Father and the child spending time together at a location other than Dr F’s office, with Dr F as supervisor, once per fortnight for a period of two (2) hours on at least two (2) occasions;
(c)the arrangements shall thereafter progress to the child spending time with the Father on a supervised basis once per fortnight for a period of four (4) hours on at least two (2) occasions, with the supervisors to be an adult of the Father’s choice as well as an adult well known to the child and the Mother (in the event that agreement cannot be reached between the parents in respect of an adult well known to the child and the Mother, the Mother provide to the Independent Children’s Lawyer two options and the Independent Children’s Lawyer is to nominate the adult); and
(d)the arrangements shall thereafter progress to the child spending unsupervised time with the Father on a fortnightly basis for a period of six (6) hours (excluding any overnight time).
The Father and Mother shall share equally in the costs of all sessions with Dr F.
In the event the Father fails to meet his share of the costs of any sessions with Dr F, then the child’s time with the Father (but not the child’s communication with the Father) pursuant to the terms of these Orders will be suspended until payment has been received in full by Dr F.
In the event that a parent cancels or misses an appointment time offered by Dr F, that parent shall:
(a)request that Dr F provide another appointment within seven (7) days; and
(b)confirm in writing with both the Independent Children’s Lawyer and the other parent the basis for the cancellation or missed appointment.
These Orders authorise the Independent Children’s Lawyer to obtain a report from Dr F on a monthly basis and the parents shall share the cost of any such report equally.
The parents are to sign and abide by any policy documents or LifeCare Centre service agreement as may be required by Dr F.

Exchange of Contact Details

Within fourteen (14) days of the date of these Orders the Father shall provide to the Mother’s solicitors details of the email address to which the Mother can send emails to communicate with him in accordance with Orders (3) and (5).
Within fourteen (14) days of the date of these Orders the Mother shall either personally or through her solicitors provide to the Father:
(a)a preferred postal address to which the Father may post the items referred to in Order (9) hereof;
(b)details of the email address to which the Father can send an email reply in accordance with Order (4) hereof.

Programs

The Mother is to commence and complete:
(a)a Parenting Orders Program at the Post Separation Co-operative Parenting Service offered by H Community at G Town; and
(b)a Circle of Security program offered by H Community.

Watchlist

Mr Naima born … 1975, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the child E born … 2009 from the Commonwealth of Australia for a period of five (5) years;
AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the child E a born … 2009 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for a period of five (5) years.

Travel

In the event the Mother proposes to travel overseas with the child, the Mother be permitted to travel overseas to a country that is signatory to the Hague Convention with the child provided that:
(a)she gives the Father not less than two weeks written notice via email of her intention to travel with the child;
(b)she provides an itinerary to the Father including their departure date and return date, the details of the cities or towns which the child will be travelling to, and a copy of the child’s return ticket at least seven (7) days prior to the departure date;
(c)during the travel, the Mother shall arrange for, facilitate and initiate one telephone call by the child to the Father between 6:00 pm and 6:30 pm Wednesday (local time to wherever the child is travelling).

Adjournment

The matter be listed on a date to be fixed in not less than nine (9) months.

Liberty to Apply

The parents and the Independent Children’s Lawyer have liberty to apply in respect of parenting matters.

AND IT IS NOTED THAT:

(A)Order (25) is not intended to prohibit the Mother, Ms Farina born … 1973, from travelling with the child E born … 2009, and should be read so as to allow and permit the Mother to travel in accordance with Order (26).
(B)The parents are in the process of confirming sessions with Dr F to be held on the following dates:
(a)Saturday 28 January 2017;
(b)Friday 10 February 2017;
(c)a potential date in between 9 March 2017 and 18 March 2017;
(d)Saturday 18 March 2017; and
(e)dates to be advised by Dr F thereafter.

(C)In the event that Dr F considers at any stage the child is not ready for the progression of time provided for within Order (16), it is intended that Dr F will confirm this in writing with both the parents and the Independent Children’s Lawyer.

AND IT IS FURTHER NOTED THAT

(D)In the event that Dr F can facilitate time between E and her Father on the occasions that are particularised in Clause (11) of this Order, the Court requests that Dr F give serious consideration to doing so - even if only for a short visit.
(E)The Independent Children’s Lawyer has today informed the Court that Dr F has no availability for appointments between 9 March 2017 and 18 March 2017 inclusive.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending Notation A to record the correct references to Order numbers within this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farina & Naima has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9358 of 2014

Ms Farina

Applicant

And

Mr Naima

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

There are two outstanding interim issues. The first of those is whether, in essence, there should be specific orders which provide for E to have the opportunity to spend face to face time with her father on the occasions and at the events summarised in Order 11 of the Orders just made on an interim basis by consent.
The father’s position, if I might summarise it broadly, is really that it is important to afford to E the opportunity - particularly on her birthday - to spend face to face time with him. He submits that this importance arises out of the fact that there have been two previous occasions in two previous years on which E has had the opportunity to spend time with him. He expresses a concern that if she is not afforded that opportunity this year, she will somehow draw a conclusion that he is not, speaking broadly, interested in her or her birthday and does not accord it importance.
The mother’s position, as advocated by Mr Galloway who appears on her behalf, is, in essence, that there is no order prohibiting particular time and rather, the situation should be left to be managed by Dr F, the person to whom the parties have entrusted the obligation of therapeutically facilitating E’s ongoing relationship with her father.
The Independent Children’s Lawyer’s position is more that the focus at this stage should be upon ensuring that E is protected from the possibility of repetition of unfortunate events like those which have occurred at the shopping centre and at the I Markets - which involved her being exposed to, and the centre of, altercation between her parents.
I note that a term of the Order I have made by consent provides, by way of Notation, that the parties are in the process of confirming sessions with Dr F. One of those sessions is, it is said, intended to be held on Saturday, 28 January of this year. That is, of course, only a few days before E’s actual birthday.
I am not persuaded at this stage that it is in E’s best interests that I mandate particular dates and particular times. I take into account, in particular, the submissions made by Mr Galloway to the effect that there is no prohibition on time - it is simply a matter of the parties, at this stage or with the assistance of Dr F, attempting to facilitate E’s ongoing development of a relationship with her father.
To that effect, then, I intend to include, as a Notation to the Order, something that reflects the Court’s intention and/or desire and/or hope that, in the event Dr F can facilitate time on the occasions that are particularised in Clause 11 of the Order she give serious consideration to doing so - even if only for a short visit.
I certainly express my hope that, if it is capable of being facilitated by Dr F, E is afforded the opportunity to spend time with her father, particularly, for example, on Father’s Day: but, it is clear also, of course, that that date is some distance in the future; time will simply tell whether the arrangements agreed to by E’s parents have what I accept is a jointly hoped for effect: namely, to assist her in developing a relationship with her father into the future.
I decline, for these very short reasons, to make any orders specifically requiring that E spend face to face time with her father on those dates.
The second matter remaining for determination on an interim basis is the application made by Mr Galloway (on behalf of the mother) for injunctive orders. If made, those would restrain E’s father from entering, remaining at or attending at the mother’s home, E’s school or her extracurricular activities (including, but not limited to, gymnastics training and competitions).
It is, in my view, very appropriate that steps are taken to ensure that there is not a repetition of the events to which I have already made brief reference - those being the events at the shopping centre and I Markets.
It seems to me it is appropriate for E’s welfare that orders are made to ensure that there is no such repetition.
I note, also, that E’s father did not really object to orders being made in relation to either the mother’s residence or, really, the school. His concern, it seems, was that there may be some accidental attendance at extracurricular activities.
It seems to me appropriate for E’s welfare that I make an order in the terms of the injunction agreed to by the mother and the Independent Children’s Lawyer.
However, taking into account the father’s submissions about, in essence, enlisting Dr F’s assistance in this matter and, consistent with the parties’ engagement with her, it seems to me to be appropriate to amend the injunction so that at the commencement of what is Clause 25 of Exhibit A, there will be the words: “unless otherwise agreed between the parties in writing”. In that way, in the event that Dr F recommends it is appropriate the father have the opportunity to attend at an extracurricular activity in which E is participating (with notice, no doubt, to E and, perhaps, for a short period) this order would not prohibit that from occurring.
This is, in my view, consistent with the manner in which the parties have agreed Dr F should be involved in the process, as reflected in the interim Orders made by consent.
It is also, in my view, appropriate for E’s welfare that an additional order be made in the terms I have outlined during the course of discourse with Mr Galloway – namely, that the mother is required to inform E’s father of the location of the extracurricular activities in which E will be participating, with such notification to occur in writing via email sent no less than 24 hours before the activity occurs.
In that way also, it seems to me, I minimise the prospect of any inadvertent and mistaken attendance at an event and, therefore, minimise the risk to E of a repetition of involvement in events which can only, in my view, have been frightening for her and unhelpful to the development of an ongoing relationship with her father.
For those short reasons then, orders will issue by way of interim order to deal with each of those two issues.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 January 2017.

Associate:

Date: 18 January 2017

[2017] FamCA 27

18 January 2017

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Injunction

Jurisdiction

Procedural Fairness

Costs

Remedies