GABER & AKHTAR

[2018] FamCA 525

FAMILY COURT OF AUSTRALIA

GABER & AKHTAR [2018] FamCA 525

FAMILY LAW – CHILDREN – Best interests – With whom the children live – where the children, aged 13 and 11 have not spent time with the father since no later than 2013 – where there is no appearance by the father – where the father indicated at a previous Court appearance in June 2018 that he would not attend – where the mother is granted sole parental responsibility for all issues other than the children’s names – where the children will live with the mother – where the children shall spend time and communicate with the father in accordance with their wishes.

Family Law Act 1975 (Cth) Australian Passports Act 2005 (Cth)
APPLICANT:	Ms Gaber

RESPONDENT: Mr Akhtar

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 3652 of 2013

DATE DELIVERED: 16 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hogan J

HEARING DATE: 16 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Kouchoo, N J Papallo Lawyers

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey, Legal Aid NSW Parramatta Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting Orders are discharged.

2. The children, X (male) born on… 2004 and Y (female) born on … 2007, live with the mother.

3. The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the children’s names.

4. The parties shall have equal shared parental responsibility in relation to the issue of the children’s names.

5. The children shall spend time and communicate with the father in accordance with their wishes.

6. The mother shall facilitate any wish expressed by the children, or either of them, to spend time with and/or communicate with their father.

7. The mother shall, within seven (7) days from the date of these Orders, provide to the father:-

   (a)       an email address which he can use to communicate with the children;

   (b)details of the children’s current school, together with a written authority enabling the father to obtain the children’s school reports, newsletters and school photograph order forms directly from the school and any associated cost shall be borne by the father.

   (i)in the event that the children, or either of them, change school, the mother shall notify the father of this change via the email address … (or as notified by the father in accordance with Order 9) and provide another written authority as set out in Order 7(b).

8. The mother shall notify the father, via the email address … (or as notified by the father in accordance with Order 9) of any major medical issues affecting the children, or either of them and shall provide any necessary authorities to enable the father to liaise directly with any treating medical practitioner to obtain information about diagnosis, prognosis and treatment.

9. The father shall notify the mother via the email address given in accordance with Order 7(a) of any change in his email address.

10. The mother shall be entitled to obtain a passport for the children, or either of them, as part of the exercise of sole parental responsibility as set out in Order (3) and shall not be required to seek or obtain the consent of the father to the issue of a passport for the children, or either of them.

11. Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the children, X (male) born on … 2004 and Y (female) born on … 2007, are permitted to have Australian travel documents (in particular, Australian passports).

12. In the event the father refuses to sign any document enabling the children to obtain Australian passports, the Registrar of the Court is empowered to sign the children’s passport applications to facilitate the issue of passports for X (male) born on … 2004 and Y (female) born on … 2007 on the father’s behalf. 

AND IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer is discharged.

2. All outstanding Parenting Applications are dismissed.

3. 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.

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 Gaber & Akhtar 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 PARRAMATTA

FILE NUMBER: PAC 3652 of 2013

Ms Gaber

Applicant

And

Mr Akhtar

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings are in relation to two children:  X, who was born in 2004, and Y, who was born in 2007.  The absence of the father this morning makes it unnecessary for the reasons of the Court to be more extensive than to acknowledge the Court’s general acceptance of the contents of the written submissions prepared on behalf of the Independent Children’s Lawyer, which provide a very helpful overview of the proceedings between these children’s parents.

2. I have also had the opportunity to read in detail, in the course of preparing for this morning’s hearing, two documents prepared to assist the Court.  The first is a Child and Parents Issues Assessment that is dated 2 December 2015, prepared by Ms C, a Family Consultant based in the Parramatta Registry of this Court. Ms C’s first assessment followed upon her interviews of the parents and the children on 3 November 2016.  I accept the opinions she expresses in the Child and Parents Issues Assessment, and the accuracy of the assertions she has recorded following her opportunity to interview the parents and undertake discussions with the children on that occasion. 

3. Ms C had the opportunity to return to the matter when she interviewed the parents and undertook interviews of the children, and observations of the children with each of their parents, on 10 January 2017. Following that opportunity, she prepared a Family Report (dated 15 February 2017), which I have had the opportunity to read in detail during the preparation for the commencement of the trial this morning.  I accept the opinions expressed by Ms C in the Family Report. I also note, in particular, the concerns she has identified about the father’s capacity to parent the children; her recommendation was to the effect that, if it were determined that it is in the children’s best interests to spend time with the father, such time commence on a supervised basis, before moving to no more than daytime time on an unsupervised basis. 

4. All of that evidence needs to be seen in the context that the children have not spent time with their father (other than in the context of those two interviews) since no later than 2013.  

5. Whilst the parent’s evidence is in dispute in relation to the date of their separation, resolution of that issue is unnecessary for the determination of those parenting orders which are in the children’s best interests in July 2018.

6. As will be apparent from recourse to the transcript of my discourse this morning, I am satisfied that the father has been afforded procedural fairness, and is aware of the commencement of the trial this morning.  I am satisfied that he has made a decision not to continue to seek parenting orders: I rely upon his comments to the Court as captured in the transcript of proceedings that occurred on 18 June 2018; in particular, those comments to Foster J, which may be found, in particular, between pages 8 and 9 of the transcript.

7. I record, in particular, his Honour’s comments to the father at line 18 (of page 9 of the transcript), where after receiving multiple assertions from the father that he did not intend to proceed with the parenting aspect of the dispute between the parties and following the father’s information to the Court that the Court could make an order right now (“…that the father has given up and finish. The final hearing has gone…”), he noted that he was not prepared to do that on that day, but was prepared to leave that as an open opportunity later, when the hearing occurred.

8. I am satisfied that the father has had the opportunity to consider his position, given the time that has elapsed between that appearance and this morning.

9. I am also satisfied that is in the children’s best interests for there to be finality to the proceedings. 

10. On the evidence before me, I am persuaded that the orders proposed by the Independent Children’s Lawyer by way of final order are orders that are in the children’s best interests, given the contents of the reports which contain a record of the children’s attitude toward spending time with the father and that they have been parented primarily by their mother, particularly since the parental separation in no later than 2013.  It is also clear that they have spent no time with their father since that date. 

11. The issues raised in the mother’s evidence, as discussed in the Family Report, certainly persuade me that the most appropriate orders, and those which are in the children’s best interests, are those which enable them the opportunity to spend time and communicate with their father if they express such a wish to do so in the future; the orders proposed by the Independent Children’s Lawyer leave open that opportunity.

12. The orders proposed also provide for the mother to ensure that there is a mechanism by which there could be communication between the children and their father into the future.  She is also required to inform the father of any major medical issue affecting the children, and he is to be authorised, by the making of the orders sought, to obtain the relevant information from any medical practitioner who might treat the children – and also from the school; quite appropriately, it is left to him to do so if he wishes to demonstrate an intention to obtain that information.

13. I have heard submissions in relation to whether I should give consideration to making an order that requires the mother to seek the father’s input prior to exercising the sole parental responsibility, which I am easily persuaded is an order that is in the children’s best interests that she have. 

14. I accept that, in the circumstances of this case, it is not in the children’s best interests for the mother to be required to engage in communication with the father, or to seek his views about any decisions she might make in the exercise of that sole parental responsibility.

15. I also intend to make an order that limits the exercise of the sole parental responsibility to all matters that are major long-term issues as defined under the Family Law Act 1975 (Cth), save for the issue of the children’s name. I do so in circumstances where I note that there is no evidence to suggest that the mother has any intention, into the future, of changing the children’s names; however, it is a matter I raised with the legal representatives, and about which there is no opposition.

16. I consider it appropriate and in the children’s best interests that the order according to the mother sole parental responsibility be limited to exclude the issue of the children’s names; and that there be an order that the parents have equal shared parental responsibility in relation to the exercise of parental responsibility about the issue of the children’s names.

17. Recourse to the transcript of this morning’s appearance will also reveal the discourse I have had in relation to the issue of the children being able to have a passport and their mother being able to obtain a passport for them in order to facilitate any travel that might be thought appropriate and beneficial for them into the future. For the reasons I have expressed – namely, a concern to ensure that all orders are made to facilitate that in a manner that minimises the likelihood of any future proceedings or any requirement to engage in a multiplicity of communication between the parents – I have concluded that it is in the children’s best interests that I make an order in terms of Clause 8 of the Minute of Proposed Orders as contained in the Case Outline filed on behalf of the Independent Children’s Lawyer. I also make an order that, pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children are permitted to have Australian travel documents (in particular, Australian passports). That order will be made, as I said, in order to facilitate the children being able to have the opportunity to travel outside of Australia at some time in the future as determined by their mother.

18. I will also make an order to minimise the prospect of any difficulty associated with them obtaining passports.  I make an order that, in the event that the father refuses to sign any document that he is required to sign in order to facilitate the children obtaining Australian passports, then a Registrar of the Court will be appointed in order to sign such documents in his stead.

19. I am satisfied, for those short reasons delivered orally, and in the absence of the participation of the Respondent, that the orders as prescribed in the Minute of Proposed Order, as amended in the manner reflected in the Reasons I have just delivered, are orders which are in the children’s best interests and I will make those orders.

20. I should also make an order, of course, discharging any previous parenting orders, although I suspect there are none, and then, also, to discharge the Independent Children’s Lawyer; and also to dismiss any outstanding interlocutory parenting applications.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 16 July 2018.

Associate: 

Date:              16 July 2018