FAWAZ & SALEH

[2020] FamCA 753

FAMILY COURT OF AUSTRALIA

FAWAZ & SALEH [2020] FamCA 753

FAMILY LAW – CHILDREN – undefended hearing – where the mother did not appear – where the mother’s solicitors filed a Notice of Discontinuance – orders made for the children to live with the father and for the father to have sole parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT: Mr Fawaz

RESPONDENT: Ms Saleh

FILE NUMBER: BRC 8395 of 2018

DATE DELIVERED: 18 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 18 August 2020

REPRESENTATION

THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Lawyers With Integrity

INDEPENDENT CHILDREN’S LAWYER: Ms C Bint
C M Bint Family Lawyers

Orders

1. That the father have sole parental responsibility in respect of all major long term issues of the children, X born … 2011, W born … 2014 and Y born … 2016 (“the children”).

2. That the children live with the father.

3. That the children spend time with the mother as agreed between the parents in writing.

4. That the children communicate with the mother by Facetime/telephone/other video calling facility each Saturday at 6.15pm, with the mother to initiate the call to a number provided to her by the father, and the father to ensure that the children are available to take the call and, in the event they are not available, ensuring that the children call the mother as soon as practicable after that time.

5. That the children be able to communicate with the mother by telephone/Facetime at any time they reasonably request and the father will facilitate this by assisting the children to dial the number and ensuring the mother answers before handing the telephone to the child/ren.

6. That both parents will keep the other informed of a residential address, email address and contact telephone number and shall advise the other parent within forty-eight (48) hours of any change occurring.

7. That the father will inform the mother of any significant events in the children’s life and immediately in the case of an emergency concerning the children.

8. That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8395 of 2018

Mr Fawaz

Applicant

And

Ms Saleh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. In this matter, three children, X born in 2011, W born in 2014 and Y born in 2016 were conceived during a relationship between the Applicant father Mr Fawaz who is aged 34 years and the Respondent mother who now prefers the name Ms Saleh who is 30 years of age.

2. The evidence suggests that the parties cohabited from between February 2010 until they separated 14 January 2018.

3. The material that has been filed to date in these proceedings, which were commenced by the father in July 2018, reflects some earlier parental conflict, domestic violence allegations and disharmony.

4. Nonetheless, as I have indicated, the parties remained in an intact relationship, it appears, for over eight years.

5. The catalyst for the father’s application seems to be actions taken by the Department of Child Safety, Youth and Women who, in June 2018 after the mother assaulted X, removed the children from the mother and placed them in the care of the father.

6. The father then brought the application to the Court and the first substantive Order, and one made by consent on 29 January 2019 by Registrar Brooks, provided for the children to reside with the father and for the children to spend time with the mother “under supervision in a Contact Centre and the parties be equally responsible for the cost of the Contact Centre”.

7. For some time, a firm of solicitors have acted for the mother on a pro bono basis.  I am told by Ms Deen, who is the principal solicitor of the firm, Lawyers with Integrity, today that they also acted for the mother when she pleaded guilty about 12 months ago to two charges of assaulting the child, X.  An explanation as to why she pleaded guilty is provided in an Affidavit which I have read, and is before the Court, from a former solicitor of the firm Lawyers with Integrity, Mr B on 12 November 2019 at paragraphs 19 to 21.

8. That Affidavit also provided to the Court some extensive information about a serious accident the mother suffered in 2007 from which she developed, sadly, epilepsy, which appears to now be uncontrolled.

9. This has caused the mother severe cognitive issues arising from her consistent falls and regular seizures.  She has spent significant periods in hospital as recently as the last 12 months.

10. To what extent the mother’s condition contributed to the serious assault upon the oldest daughter is not known.  However, I would not exclude it as a contributor.  I do not have, for example, the sentencing remarks of the District Court Judge, and in saying so, make no criticism of the highly Experienced Independent Children’s Lawyer, Ms Bint, for not putting those remarks before this Court in circumstances where, as I now indicate, the mother has not been able and/or willing to engage in the care of her children now for some time.

11. In making the last comment, I note that after the children were placed in the care of the father in June 2018, a position as I indicate confirmed by consent Order made on 29 January 2019, it appears that she may have spent little if any physical time with the children.  She has, it seems, however, been maintaining or seeking to maintain regular telephone time weekly, although the father today informs the Court that only the child W seems interested in engaging with the mother.

12. The mother did attend family report interviews with the family report writer engaged by the Independent Children’s Lawyer, Mr D.  Those interviews of the mother took place on 12 November 2019.  Mr D’s report, which is before me and I have read, identified a range of the conflicting issues between the parents about the difficulties in their relationship leading up to their final separation.

13. Taking a cautious approach, however, as is reflected at paragraph 126 of the family report, and because of the limited participation by the mother in the assessment (for example, being observed with the children) Mr D recommended in his report dated 18 November 2019 that the father should have sole parental responsibility; that the children should live with the father; that the children should spend time with the mother at the contact centre, not less than once a fortnight, and that otherwise the children should communicate with the mother by telephone on a weekly basis.

14. Since that time, it appears at least for this year, the mother has been unable to consistently provide instructions to her solicitors.  This is said by solicitors and reflected in Exhibit 2 because of her epileptic episodes and her repeated hospital admissions.  On any reading of the evidence, it is a sad reality that this lady is very unwell, and her capacity to engage consistently in the life of the children is very uncertain.

15. Ms Deen, the principal solicitor, who as a courtesy to the Court appeared today, indicated that when she filed the Notice of Discontinuance in the Court on 6 March 2020 and signed it, she did so on the instructions of the mother, supported by her medical professionals and other members of her family.

16. The result seems to me, therefore, that the mother is not currently able to participate in any meaningful way at this stage in the care or life of her three children.  That is less than an ideal situation for her three children to whom she gave birth, and not one which I expect is the mother’s wish.

17. Nonetheless, the unrepresented father who has the burden of the day to day management of these children is entitled to get on with his life and his role as primary carer to these children.  It is for this reason that when the matter came before the Court at a call-over of matters awaiting trial, and having heard about the difficulties, sadly, the mother is facing, that the Court listed the matter today for an undefended hearing.

18. The courtesy of Ms Deen appearing, accompanied by her graduate solicitor, Ms Law today, has helped in understanding that the mother, or at least her legal team, are aware the matter is before the Court today.

19. The Notice of Discontinuance having been filed on instructions really operates as an indication to the Court that the mother does not contest the application of the father.

20. That is not to be said that she may not contest arrangements at some future date, and the unrepresented father needs to be aware that the circumstances of this case are such that if the mother can demonstrate to the Court the nature and substantial change of circumstances from how they exist today, particularly in respect of her functioning and is able to consistently be a meaningful part of the children’s life, then a Court would seriously wish to consider giving the children the right to reengage with their mother at a future time.

21. However, at this stage, it seems to me in all respects appropriate that the Court should proceed on an undefended basis, and it will do so.

22. In that regard, I heard succinct yet proper submissions from the Independent Children’s Lawyer as to why the orders she proposes should be made.  They are Exhibit 1.  I note that they do not provide for parental responsibility.  In my view, subject to submissions, I propose to order that the father have sole parental responsibility for major long term issues as clearly the mother is not currently in the stage of being able to add any value to that decision-making process.

23. The orders do not provide, sensibly in my view, that the children do not spend time with the mother.  The orders provide that the children spend time with the mother as agreed between the parties in writing.  The father indicates that he thinks, in view of the history of the matter and the recent difficult journey with the children and the parents, that he would be unable to reach any agreement with the mother.  In that regard it is noted that there was an order for the mother to spend supervised time, but that she was unable to take up that opportunity, either because of her health or other reasons.

24. I have explained to the father, and it is the Court’s view, that it is an important statement for these children that it be noted that this Court, in making orders in their best interests, have not formed the view that they should not spend time with their mother.  Rather, at a time when the mother is able to engage, if she wishes, and brings an application in the future, and can demonstrate that the children would be safe in her care, that a process of reunification could be considered and most likely would be ordered, subject to it being in the children’s best interests.

25. It is a significant gap in a child’s life to not have an available parent in their life.  Sadly, as I have said on more than one occasion today, the mother is not currently available because of her health issues which are severe and significant.

26. For these reasons, I propose to make the orders which I believe are in the best interests of X, W and Y on the current evidence at the current time.  I also propose to discharge the Independent Children’s Lawyer with the thanks of the Court.

27. It is my hope that at least perhaps during the infancy of these children that the mother’s health will reach a stage and level of consistency that she can engage with her children in a more meaningful way than by telephone.  Certainly, as the evidence before the Court now demonstrates, she has some significant issues arising from an accident in 2007.  However, she remains the mother of the children; at one point in time they will be adults and may well seek out their mother, and to the extent that there can be some interaction that is safe before they reach their adulthood, the more likely it is that these children could begin as adults to form a relationship with their mother which cannot be, by any orders I can make today, facilitated at this stage.

28. I will cause these Reasons to be settled and provided to the parties so that the mother understands that her sad position has been taken into account, but that ultimately this is a matter where the Court is required by order to consider the best interests of the children on the evidence at this stage, and the best interest of the children in my view are for the orders to be made as contended for by the Independent Children’s Lawyer with the addition of the two other clauses referred to.

29. The Orders appear at the commencement of these Reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 August 2020.

Associate: 

Date:  11 September 2020