Fayad & Khalil (No 2)
[2024] FedCFamC1F 171
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fayad & Khalil (No 2) [2024] FedCFamC1F 171
File number: MLC 10589 of 2020 Judgment of: HARTNETT J Date of judgment: 19 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay Application – Parenting – Where the mother sought a stay of final orders preventing her from having immediate contact and/or spend time with the children – Where the mother had filed a Notice of Appeal – Where the father and the Independent Children’s Lawyer opposed the mother’s application – Application for stay refused – Application dismissed with costs Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 13 March 2024 Place: Melbourne Counsel for the Applicant: Ms Tiernan Solicitor for the Applicant: Macpherson Kelley Pty Ltd Counsel for the Respondent: Mr Smith Solicitor for the Respondent: Altona Legal Counsel for the Independent Children's Lawyer: Mr James Solicitor for the Independent Children's Lawyer: Westminster Lawyers Pty Ltd ORDERS
MLC 10589 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KHALIL
Applicant
AND: MR FAYAD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The mother’s stay application is refused and her Application in a Proceeding filed 12 February 2024 be dismissed.
2.The mother pay the costs of the father as agreed in writing within 7 days hereof or failing agreement as determined by the Court upon each of the parties filing written submissions as to costs within 21 days thereafter.
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 Fayad & Khalil has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
The matter proceeded before the Court in circumstances where the applicant mother (“the mother”) filed a stay application with respect to final parenting orders as made by the Court on 8 February 2024 (“the final parenting orders”).
The mother sought that Orders 1-4 inclusive, Orders 10-21 inclusive, and Order 27 of the final orders made by the Court on 8 February 2024 be stayed until further order and pending the hearing of the Notice of Appeal filed by her on 13 February 2024.
The mother further sought an order that she be able to provide to her treating counsellor for the purposes of receiving therapeutic counselling: the judgment and final orders made 8 February 2024; the Family Report dated 7 March 2022; the Family Report dated 18 January 2023; and the psychological assessment of the mother dated 7 April 2022. This order as sought by the mother was not opposed by the respondent father (“the father”) and the Independent Children’s Lawyer (“the ICL”) and was accordingly made as a consent order on the day of the hearing of the mother’s application.
In his response to the mother’s stay application, the father sought that such application be dismissed. He sought the mother pay the father’s costs of and incidental to the application.
In support of her application, the mother relied upon an Application in a Proceeding filed 12 February 2024; her affidavit filed 12 February 2024; and an Outline of Case document filed 8 March 2024.
The father relied upon a Response to an Application in a Proceeding filed 12 March 2024; his affidavit filed 12 March 2024; and an Outline of Case document filed 12 March 2024.
The ICL did not file any material, but at the hearing submitted that the ICL supported the father’s position, and the ICL formally opposed the making of any stay order.
BRIEF BACKGROUND
On 8 February 2024, the final parenting orders were made by the Court. They were, relevantly, as follows:
THE COURT ORDERS THAT:
Parenting
1. Save for Orders 1 and 2 of the Orders made 5 February 2024 all previous parenting orders be discharged.
2. The father have sole parental responsibility for the children, [Y] born [in] 2016 and [X] born [in] 2016 (collectively known as “the children”).
3.Prior to and when making any decision about the long-term issues in relation to the children, the father will:
(a) inform the mother in writing of the decision to be made (where possible at least 28 days before it is to be made);
(b) invite written comments from the mother and if the mother responds within the timeframe, take such comments into account when making the decision; and
(c) inform the mother in writing of the decision.
4. The children live with the father.
5. Changeover is to be effected at the Court Children’s Service on Level 5 of the Commonwealth Courts Building as directed by the Director of Court Children’s Services (Victoria) in consultation with the Independent Children’s Lawyer (“the ICL”). At changeover, the ICL and/or counsel for the ICL and a Family Consultant shall be in attendance.
6. The mother forthwith leave the Commonwealth Courts Building, with the children to remain in the care of the Court Children’s Service, and the mother shall not further interact with the children.
7. The father shall attend upon the Court Children’s Service as directed by the Family Consultant and follow the instructions of the ICL and Court staff.
8.Prior to changeover being effected the ICL and/or counsel for the ICL shall explain to the children in the presence of the Family Consultant the orders as made by the Court.
9.There is liberty to the Family Consultant to obtain the services of [security services] and/or Victoria Police to assist in the handover of the children from the mother to the father.
10.The father is to forthwith arrange for the children to attend therapeutic counselling which he shall also attend when and if directed by the therapist. Such therapist to be selected by the ICL and to be a therapist familiar with and experienced in proceedings brought in the Federal Circuit and Family Court of Australia Divisions 1 and 2. Such therapy shall continue for a period not exceeding twelve (12) months and the costs of same shall be met by the father.
11.For a period of three (3) months (“contact moratorium period”) from the making of these orders, the mother, her servants and/or agents be and are hereby restrained from spending time or communicating with the children by any means, including mail, telephone, email, text message or social media.
12.During the contact moratorium period:
(a)in the event the children contact or communicate with the mother, the mother shall not respond to such contact or communication and shall report such contact or communication to the father via email within 24 hours of her receiving it;
(b)in the event the children attend upon the mother at her home, or any other location save as explicitly outlined in these Orders, the mother shall report same to the father and shall do all things necessary to facilitate the children’s return to the father;
(c)the mother shall be at liberty to contact the children’s school in a manner approved by the school but not to include the mother’s personal attendance at the school to obtain updates in relation to their progress, and the mother shall be at liberty to provide a copy of these parenting orders to the children’s school as authority for same; and
(d) the mother shall otherwise be restrained from contacting or personally attending upon the children’s school.
13.Upon expiration of the contact moratorium period, the children shall spend supervised time with the mother. Such supervision shall be by Angelico Family Services or like supervision provider as selected by the father, and as paid by the mother. Such supervised time is to occur once each week on such weekend day and at such times and for such duration as can be accommodated by the supervision service for a period of three (3) months.
14.Following the expiration of supervised time between the children and the mother as provided for in Order 13 herein, the children spend unsupervised time with the mother as follows:
(a) each Saturday from 9.00am to 5.00pm for a period of two (2) months; and
(b) thereafter, and for a period of a further three (3) months, each alternate weekend during school terms commencing on the first weekend following a school term from after school Friday (or 5.00pm if a non-school day) to before school Monday, unless the Monday is a public holiday in which case such time shall extend to before school Tuesday, together with telephone communication each Wednesday at 6.00pm for no longer than 30 minutes;
(c) thereafter, each alternate week from after school Friday (or 5.00pm if a non-school day) to before school Wednesday (or 5.00pm if a non-school day) together with telephone communication each alternate Wednesday at 6.00pm for no longer than 30 minutes;
(d) during all school holidays and special occasions days as agreed in writing between the parties; and
(e)otherwise as agreed in writing between the parties.
15.Changeovers not occurring at the school, shall take place as otherwise agreed in writing between the parties.
16.There is liberty to the father to produce a copy of these orders to the children’s school and to any of the medical or allied health professionals who have been treating the children or either of them or who shall do so in the future.
17.The father keep the mother advised of any medical practitioners treating the children in a timely manner and the mother and the father shall forthwith advise the other of any urgent medical treatment as needed by the children or either of them whilst in their respective care.
18.Each of the parties is to advise the other forthwith of any serious illness or injury, or any hospitalization, of the children, or either of them whilst in their care, along with the names, addresses and contact details of any hospital and/or treating medical, dental and/or allied health professional so that each parent may consult same and be permitted to attend upon the child or children.
19.Each of the parties are permitted to liaise with any medical practitioners treating the children and obtain documents ordinarily available to parents, and these orders shall act as authority for same.
20.The father be permitted to call the children by their registered birth names and the mother be permitted to call the children by the names of [Z] (the child [Y]) and [W] (the child [X]) save that the mother is not permitted to seek a change to the children's registered birth names.
21.The father be at liberty to expose the children to Muslim teachings and the mother be at liberty to expose the children to Christian teachings.
22.The children remain enrolled at their current primary school until the conclusion of the 2025 school year.
23.The mother and father shall communicate or discuss child arrangements via email, save in the event of an emergency, where such communication be via SMS text message.
24.The children be reasonably permitted to contact their parents by telephone, SMS text message, FaceTime, Zoom, WhatsApp, Microsoft Teams or any video call at their request and the parent caring for them shall facilitate same.
25.The parties be permitted to liaise with the children’s school and to obtain documents ordinarily made available to parents, including but not limited to newsletters, reports, photos, photograph order forms and the like, and these Orders shall act as an authority for same save that this Order is subject to the operation of Order 12 herein.
26.The parties do all acts and things required to ensure both have full and unrestricted access to any online or electronic communication platform used by any school attended by either of the children.
27.The mother be restrained from enrolling the children or either of them in any extracurricular activity without first obtaining the written consent of the father.
28.The parties be entitled to attend all extracurricular activities and school related events that parents are normally invited to attend regardless of who has the children in their care save that this Order is subject to the operation of Orders 12 and 13 herein.
29.The parties are to notify each other within 24 hours of any changes to their mobile or landline contact telephone numbers, their residential addresses, email addresses or the children’s mobile telephone numbers.
30.The parties be restrained from:
(a)denigrating the other party or the other party’s family to or in the presence and/or hearing of the children or either of them;
(b)discussing court proceedings with or in the presence and/or hearing of the children or either of them;
(c) passing messages through the children or either of them; and
(d)involving the children in any form of dispute between the parents or otherwise.
31. The children’s passports are forthwith to be held by the father.
32. The ICL be discharged 12 months after the making of these Orders.
…
Because of the making of the above orders, the parties’ children commenced to live with the father on 8 February 2024.
On 9 February 2024, the mother’s solicitors contacted the ICL and the father’s solicitors providing further information in relation to the children. The mother offered to have a third party deliver to the children’s school their medication pending the father’s attendance upon the children’s general practitioner. Both the ICL and the father’s solicitors did not object to a third party providing the children’s medication to the school office for the father to collect. The mother subsequently arranged for the facilitation of the children’s medication to the children’s school.
On 9 February 2024, the father facilitated a meeting between him and a representative of the children’s school to advise the school of the final parenting orders, and to confirm the children’s ongoing attendance at the school commencing the following week.
On 12 February 2024, the children resumed their school attendance.
On 12 February 2024, the mother claimed that she was contacted by the mother of one of the children’s school friends, PP. PP’s mother allegedly provided a screenshot to the mother from the child Z to PP via an online game. The message was as follows:[1]
Feb 9, 2024 12:38PM
HELPP
Feb 11, 2024 8:24AM
Are you ok
Feb 11, 2024 10:55AM
NO IM NOT I GOT KIDDNAPPED PLSS HELP US WE ARE GONNA ASK YOU FOR U TO TAKE US HOME PLS SAY YES PLSS I DONT WANNA STAY WITH THE KIDDNAPPER FOR 3 MONTHS PLSS
[1] Mother’s affidavit filed 12 February 2024, Annexure RC-3.
On 17 February 2024, the father facilitated the children’s attendance upon Dr QQ at LL Medical Centre, for the purposes of obtaining a mental health plan for the children. Dr QQ provided a referral for 10 sessions of counselling under a mental health care plan for the children to a mental health service. Dr QQ observed the presenting problems in the children were “social anxiety with history of psychosocial trauma”.[2] The father also obtained an asthma plan for the children and provided this to the children’s school.
[2] Father’s affidavit filed 12 March 2024, Annexure MF 1.
On 19 February 2024, the father contacted the ICL requesting a recommendation to a therapeutic counsellor and advised the ICL of the children’s attendance upon Dr QQ for a mental health plan. The ICL replied that he was waiting to hear from a counsellor approached by the ICL in accordance with the orders.
On 12 March 2024, the father received a message from the children’s schoolteacher, Ms SS, in relation to the children’s attendance and progress. The message noted both children appeared to be settling into Year Two well, the children had become more comfortable during the term, in particular noting they had “become loud and boisterous with lots of laughter” during class time and both children were “very popular” with many friends at school.[3]
[3] Father’s affidavit filed 12 March 2024, Annexure MF 2.
On 13 March 2024, the matter proceeded before me for hearing.
LEGAL PRINCIPLES
The principles relevant to a stay application are as set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, although the list of principles stated therein are not exhaustive. The principles as referred to are set out at [17] and [18] of that judgment and are as follows:
17.This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
Curial intervention by the grant of a stay should not take place lightly as Bryson JA held in Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 at [18] as follows:
18. …The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy or otherwise so adversely severe in its impact that intervention by the Court of Appeal should take place notwithstanding that there has not yet been an opportunity for full consideration.
CONSIDERATION
Since the making of the final parenting orders, the mother has had no communication with the children. The final parenting orders provided for, inter alia, the children to immediately commence living with the father and to spend no time and have no contact with the mother for a period of three months.
The mother contended there should be a stay of the final parenting orders and sought the parties either revert to the children’s previous living arrangements pending the appeal (I note the children were not spending any time with the father having previously spent supervised time only) or that there be an alternate arrangement for the care of the children, which took into account their psychological functioning, pending the appeal.
The mother claimed that should the orders not be stayed, there is a significant risk to the children’s mental health in that it will rapidly deteriorate, given she has been the primary carer of the children for the entirety of their lives, and the children are likely to experience trauma from being removed from her care. Further, that the father has not previously independently cared for the children since the parties’ separation, as he spent limited time with the children and formed no evident bond with them during supervised time spent periods. The mother reiterated that there would be real and adverse risk to the children’s mental health and stability, posing potential long-term damage.
I observe that each of the above matters as raised by the mother were carefully considered by the Court during, and after, the trial and are addressed in the reasons for judgement. They are not new matters.
The mother submitted that since the making of the final parenting orders, the children’s needs were not being met by the father. She referred to:
·The mother’s solicitor contacting the father’s solicitors on 9 February, 12 February, 27 February and 8 March 2024 seeking an update on the children’s welfare without receiving any response;
·The mother’s solicitor contacting the father’s solicitor and the ICL on 27 February and 8 March 2024 requesting an update on the children’s welfare and whether they had been engaged in therapeutic counselling pursuant to Order 10 of the final orders without receiving any response;
·The mother’s solicitor contacting the children’s school on 16 February 2024 seeking an update as to their wellbeing without receiving a response; and
·The mother’s receipt of a screenshot from one of the children messaging a school friend that he had been kidnapped.
The mother deposed to her concern as to the father’s parenting capacity and the children’s transition into an unfamiliar environment in their father’s care. She deposed to the father being reliant on limited income, working part time in hospitality and in receipt of Centrelink benefits. This, she claimed, was insufficient to support and care for the children, including payment of their school fees. The mother has her income and has been able to depend upon the financial assistance of her parents to care for the children.
The father deposed to the children being settled and comfortable in their new living arrangements and being “happy and secure”.[4] The father stated the children have become “more open in their conversations, rather than whispering between themselves. They are now more engaging with family members and other people with whom they come into contact.”[5]
[4] Father’s affidavit filed 12 March 2024, paragraph 3.
[5] Father’s affidavit filed 12 March 2024, paragraph 4.
The father further deposed that both children “love playing [sports] in the school yard with their friends. They also enjoy music lessons.”[6] The father stated his belief that the children are “not yet ready to participate in structured out of school, activities”.[7] The father gave as an example his facilitation of the children’s attendance at a swimming class for which he thought the children were not yet ready. The father has however, contacted a local sports club, given the children’s enjoyment of that sport, to ascertain an induction date for the children. The children are regularly visiting the paternal cousins in Suburb F after school during the week, and on most weekends.
[6] Father’s affidavit filed 12 March 2024, paragraph 11.
[7] Father’s affidavit filed 12 March 2024, paragraph 13.
The father currently resides in a rental home in Suburb RR. He claimed the children have their own bedrooms but prefer to sleep together in the same bedroom. The father is currently working as a tradesman on Friday between school hours and is applying for parenting payments. He is managing his financial circumstances.
The father deposed that the mother had made appointments for the children to attend upon ‘TT Therapy’ in 2023. The father made a phone enquiry of TT Therapy and was advised the mother had cancelled the appointments in July 2023. The father stated he had arranged for the children to be put back on the waiting list.
At the hearing, counsel for the mother submitted the online game messages were evidence of envisaged change and trauma and resistance experienced by the children. This contrasts with the father’s evidence, that he was told by the child X that some of the messages sent to PP did not come from him. Upon the father’s investigation, he claimed the messages were allegedly sent by the children whilst he was with the children in Suburb UU and when they did not have access to their devices. I place no weight upon nor or make any finding in relation to these messages. Further, I accept the submissions of counsel for the ICL, that even were these messages actually sent by one of the children, to PP, they were sent at a time almost immediately after the children had been placed in the father’s care, an anticipated possible trauma to them, and that on the independent evidence of the children’s teacher, the children would appear to be doing well and are happy at school each day, as they come and go from their father’s household.
Upon the evidence before me, the children appear to be settling well into the father’s care. The father is managing the children’s day to day lives, including the children’s schooling; extracurricular activities; medical needs and social needs. There is no evidence to the contrary.
The mother receiving no response from the father’s solicitors, the ICL or the school, as to the children’s progress, is not indicative of the father’s inability to meet the children’s needs. This may be the mother projecting her own dissatisfaction with the final parenting orders, and particularly the moratorium period.
Counsel for the father observed that the children had been living with the father for approximately one month at the time of the hearing, notably 1/3 of the moratorium period. He submitted that a stay of the final parenting orders would result in the children moving back to the mother, and if the appeal were to fail, there would be another change of residence back to the father and another moratorium period. This would be unsettling for the children. I agree with that submission and consider it desirable to limit the frequency of a change in residence for the children at the present time. I consider that is in their best interests. Counsel for the father further submitted that the Court had found the children were at risk of harm in the mother’s care, which was required to be ameliorated. Any stay of the orders would put the children back into the very circumstances that pose a risk to them. I agree with this submission when considering the promotion of the children’s best interests.
The mother’s Notice of Appeal filed 13 February 2024 lists five grounds of appeal.
Counsel for the father submitted each were without merit.
Counsel for the ICL submitted that the mother’s outlined grounds of appeal were general (not sufficiently particularised) and the judgement subject to the appeal discretionary. He observed that the judgment adopted recommendations by the Court Child Expert and submitted that it followed appropriate legislative pathways. It was the view expressed by the ICL that there was, in the judgement and orders made, ‘no discernible error’. Counsel for the ICL further submitted the mother had not made out the onus upon her and that the judgement should stand. He considered the current stability of the children a very important factor in refusing the stay.
Whilst the Court acknowledges the mother’s bona fides, the Court considers the grounds of appeal not particularly strong. Of significance in the trial was the expert evidence of Dr G, and to a lesser extent the independent evidence of those participating in the supervision of the children’s time with the father.
I am not satisfied that the mother has established a proper basis for the stay. The father is entitled to presume the judgement is correct and have the benefit of the judgement, given the factual circumstances in this case. Should the stay not be granted, the mother’s appeal will not be rendered nugatory. The mother’s Notice of Appeal should be able to be heard by the Full Court in a reasonable time frame and probably less than that anticipated by the mother, such that there is no prejudice to the mother in not granting the stay.
Given the above, and in the exercise of my discretion, the mother’s stay application shall be refused.
COSTS
The father sought in his Response to an Application in a Proceeding that the mother pay his costs of and incidental to the proceeding.
No parties made any submissions as to costs at the hearing. This is a discrete hearing, and the mother should pay the costs of the father on a party/party basis in accordance with the schedule scale of costs. The mother has been unsuccessful in her application. The mother has a capacity to meet such costs. In the event the parties cannot agree the quantum of costs, they will be able to make brief submissions to the Court for the Court to fix a sum.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 19 March 2024
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