Farina & Naima
[2022] FedCFamC1F 92
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Farina & Naima [2022] FedCFamC1F 92
File number: BRC 9358 of 2014 Judgment of: CAREW J Date of judgment: 22 February 2022 Catchwords: FAMILY LAW – CHILDREN – BEST INTERESTS OF THE CHILD – Where the child formed her own negative view of the father – Where the Court placed weight on the wishes of the child not to spend time or communicate with the father – Where the Court considered the likely impact of an order made against the wishes of the child. Legislation: Family Law Act 1975 (Cth) Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
M v M (1988) 166 CLR 69
Number of paragraphs: 32 Date of hearing: 21 and 22 February 2022 Place: Brisbane Counsel for the Applicant: Mr Galloway Solicitor for the Applicant: Maguire Barnes Family Law The Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law Counsel for the Independent Children's Lawyer: Mr McGregor ORDERS
BRC 9358 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FARINA
Applicant
AND: MR NAIMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
22 FEBRUARY 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother shall have sole parental responsibility for all of the major long term issues relating to the child, E born 2009 save in the event of genuine emergency the mother shall:
(a)Notify the father by email at least 14 days prior to making a decision about a major long term issue in relation to the child (including matters of education, health and religion) and invite the father to indicate his views by sending an email reply within 7 days; and
(b)Give consideration to any email reply received from the father within the said 7 day period prior to making a decision; and
(c)Inform the father by email of her decision once made.
3.In the event of genuine emergency the mother shall:
(a)Be at liberty to make the 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 48 hours of such a decision being made.
4.The child live with the mother.
5.Unless otherwise agreed in writing between the parties, the respondent father spend no time with the child save at the instigation of the child.
6.In the event the child expresses a wish to spend time with the father the mother shall communicate such a request to the father and facilitate such time.
7.The child be at liberty to communicate with her father in accordance with her views and wishes and the father shall otherwise not contact the child by telephone via or other electronic means save for where the child has requested such communication.
8.The respondent father may send letters and gifts to the child and the mother is to ensure that the father is provided with a current postal address.
9.The mother facilitate the child’s attendance upon the Independent Children’s Lawyer so as to have this order explained to the child.
10.The father be restrained from denigrating or allowing others to denigrate the mother’s faith in the presence or hearing of the child.
11.The mother be restrained from denigrating or allowing others to denigrate the mother’s faith in the presence or hearing of the child.
12.This Order act as authority for any school attended by the child to discuss the child’s educational, sporting and cultural progress with the father at his election and the school is authorised by this order to send the father copies of the child’s regular school reports and any other communications routinely sent by the school to parents at the father’s expense.
13.Each parent keep the other informed as to their current residential and postal address, any email addresses, Skype contact details, landline and or mobile phone number and shall notify the other of any changes to any of those as soon as practicable after such change is effected.
14.The mother ensure that the child has the father’s address and telephone number.
15.The mother keep the father informed as to any major medical treatment the child receives as soon as practicable after the child has received such treatment and shall provide details of the reasons for the receipt by the child of such treatment and shall advise the father as to any medication that been prescribed to be given to the child in the event that the child is spending time with the father.
16.During the time the child is with either parent or is communicating with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the presence or hearing of the child; and
(d)Positively encourage the child’s relationship with the other parent; and
(e)Not speak with the child about any allegation or any matter related to these proceedings; and
(f)Not video record or audio record the child for the purpose of the use in litigation or further proceedings.
17.In the event the mother proposes to travel overseas with the child the child shall be permitted to travel overseas with the mother provided that:
(a)The mother gives the father not less than two weeks written notice via email of her intention to travel with the child and provides details of the destination and the period for which it is anticipated the child will be out of the country; and
(b)If the child is to travel to a non Hague Convention country the mother provides to the father copies of her proposed itinerary and return tickets for the child 45 days before the date of travel.
18.Unless otherwise agreed between the parties in writing the father be restrained from entering, remaining at or attending the following:
(a)The mother’s residence; and
(b)School activities of the child’s school being D School, JJ Street, Suburb KK in the State of Queensland save for where the child has expressed and communicated that she seeks her father be in attendance; and
(c)The child’s extra-curricular activities including but not limited to sport training and competitions.
19.The mother Ms Farina be restrained and an injunction issues 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.
20.The father Mr Naima, his servants and or agents be and are hereby restrained by injunction irrespective of authenticated consent as contemplated by 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 2 February 2009, from the Commonwealth of Australia.
21.All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
22.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) the particulars of the obligations of this order, that this order creates and the particulars of the consequences that may follow if a person contravenes this order and details of who can assist the parties adjust to and comply with an order are set out in the facts sheet and these particulars are included in this Order.
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 the pseudonym Farina & Naima has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
E is 13 years of age and sadly she has been the focus of her parents’ conflict for most of her life. There have been numerous prior Court hearings including contravention hearings and four family reports prepared over the years, including the most recent one in June last year. E has always lived with her mother and has spent little time with her father, despite court orders for that to occur. The parents remain in dispute about why that has occurred, each blaming the other.
The mother wants the orders for E to spend time with and communicate with the father discharged (they were suspended last year) and replaced by orders prohibiting time and communication. The father resists the discharge of those orders and seeks make up time for two hours on 10 to 12 weekends on either a Saturday or Sunday.
ISSUES
On 15 October 2021, when this matter was set down for trial by me, the parties agreed that the following issues were the significant issues for my determination:
(1)What weight should be placed on the child’s wish not to spend time with or communicate by telephone with the respondent?
(2)What would be the likely impact on the child of an order that she spend time with the respondent against her wishes?
I should note that at that time the father was seeking an order that the child live with him but at trial that was not pressed.
WHAT LAW GOVERNS THE DETERMINATION OF PARENTING DISPUTES?
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In this particular case, the father follows the Muslim faith and is from Country J by birth. He has lived in Australia for some time and his partner, Ms S, is of the Orthodox faith. The mother is Australian born and follows the Christian faith.
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [3] on each and every factual dispute.[4]
[2] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[3] M v M (1988) 166 CLR 69 (“M v M”) at 76.
[4] M v M at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[5]
[5] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
WHAT WEIGHT SHOULD BE PLACED ON THE CHILD’S WISH NOT TO SPEND TIME WITH OR COMMUNICATE BY TELEPHONE WITH THE RESPONDENT?
E has expressed very forthright wishes not to see her father to Ms LL, the family report writer. The father contends that if E told him this he would accept it. He contends that E is only saying this because she has been brainwashed by her mother.
I note that E was seen alone with Ms LL, a very experienced social worker.
E has not seen her father since about May 2019 when there was a very tortuous attempted changeover part of which was captured by a recording made by the mother but tendered into evidence by the father. The tension in that situation was palpable. Irrespective of who is at fault, the child repeatedly stated that she did not want to go on the visit and the adults present were unable to persuade her.
The father was very focussed during the trial on seeking to prove that statements made by E to support her stated views are not true e.g. she told Ms LL that she visited the father at his home when she was nine or 10 years of age and started to feel uncomfortable from that time. It is common ground that the father was in Country J at the time so E could not have spent time with him at his home at that time. E gave particular examples to Ms LL when her father had acted aggressively in her presence and it scared her. The father contends that these incidents occurred in 2014 and disputes the accounts of the events given by E but to the extent there were incidents (and he concedes that something occurred) he says they could not possibly explain her wishes not to see him now and contends that after these events he spent happy times with the child. One incident involved the father and the mother’s then partner in an altercation at I Markets and another incident occurred at Target (a retail shop).
As Ms LL explains, if an event that the child perceived as traumatic occurred, even many years ago, that may well inform her views today. What is important is the child’s perception of what occurred and how that made her feel. Her description involved being physically caught in the middle of her parents’ dispute. I have no doubt that could have a lasting impact.
But more importantly, since then there have been many stand offs between the mother, the father and/or Ms S and despite orders being in place and despite all adults at least seeming to encourage or direct the child to spend time with the father, she has refused to do so. The videos I have seen leave me in no doubt that attending the changeovers is a very stressful experience for E. She has become distressed and refused to let go of her mother’s arm.
While I understand the father’s frustration and disappointment, the reality is that no Court order can bring about the change he wants, given E’s age and clearly stated wishes. Whether or not he or the mother are more to blame for the current situation matters not in the scheme of things. It is not the role of this Court to resolve every factual dispute between the parents but to make an order that is in E’s best interests in the particular circumstances of this case.
Rightly or wrongly, E’s perceptions of her father are that he does not listen to her and “thinks he’s right and everyone [else] is wrong”. It is clear that E would like nothing more than to have a normal relationship with her father but sadly that has not been able to occur.
When it was suggested by Ms LL to E that she might see her father, E “became teary and agitated and begged the report writer to not make her see her father and threatened to run away if she had to see him”. Given her level of distress, Ms LL did not press for a meeting between them to occur. While Ms LL assessed it as likely that the mother’s views have influenced E she nevertheless opines that E’s own experiences are largely her own. Ms LL said at [61] of her report:
61. It is likely that the mother’s fears of [Mr Naima’s] passionate views of how his daughter ought to be available to him and how she ought to relate to him and his faith, have been sensed by [E], and may have played a role in [E] developing her view and experience of her father, however based on [E]’s comments in her recent assessment interview, the report writer has formed the view that [E]'s negative view of her father has largely been formed by her own experiences of her father. Her comments suggested that she does not feel that [Mr Naima] respects her mother, nor does he respect her and her wishes.
Ms LL has assessed E as mature enough for her views to be given considerable weight and opines that forcing E to see her father would not be in E’s best interests. Unfortunately, for the father, and perhaps for E in the long term, I agree with Ms LL’s opinion that E’s stated wishes are her own and should be respected.
WHAT WOULD BE THE LIKELY IMPACT ON THE CHILD OF AN ORDER THAT SHE SPEND TIME WITH THE RESPONDENT AGAINST HER WISHES?
I have witnessed, via the videos that the father tendered, how distressing the whole ordeal of changeover has been for E. The father relies on the videos to demonstrate the mother not doing enough to assist E but the same could be said of him in the one video where he stood apart from the mother and E and made no attempt to allay her concerns or encourage her to come to him.
E pleaded with Ms LL not to make her see the father. She said she would run away if she had to and on the strength of those stated views, Ms LL did not push the issue. In my view, she acted in an entirely appropriate way. These proceedings are about E and she has been exposed to enough conflict and she should not have to endure any more. The videos that were played by the father today depict times when E was much younger but nevertheless show she did have happy times with her father and enjoyed activities with her father. One can only hope that E will one day be able to have a normal relationship with her father. If it is the case that her mother had orchestrated the deterioration in that relationship, the mother may find that E rejects her when she is older but for now I can only conclude that it is not in E’s interests for her to spend time with the father or communicate with him against her wishes. She is old enough to make contact with him if she wishes, and maybe one day she will. The father has a rich cultural history to share with her and one can only hope that at some point in the future she has the opportunity to enjoy that with him and her extended paternal family. That will be up to E.
I propose to make an order that largely reflects the order consented to by the parties on 6 December 2017 with the addition of paragraphs now recommended by the ICL. By the end of the proceedings the father sought to retain the operation of the 2017 order in its entirety. The mother sought the discharge of particular paragraphs of the 2017 order. As there has, it seems, been some variation to the 2017 order from time to time, it was urged upon me by the ICL to make a fresh order incorporating all relevant parts of the 2017 order and the additional provisions so that it is clear what the current order will be. I will do so.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 25 February 2022
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