GHANEM & HILAL

[2013] FamCA 825

FAMILY COURT OF AUSTRALIA

GHANEM & HILAL [2013] FamCA 825

FAMILY LAW – CHILDREN – Interim orders – With whom the children spend time – Where previous interim orders were made by consent to facilitate contact between the Father and the children – Where the Father has not complied with interim orders to undertake various parenting courses – Where the Father’s legal representatives sought leave to withdraw from proceedings – Further interim orders made by consent for the children to have supervised time with the Father and for the proceedings to be adjourned

Family Law Act 1975 (Cth)
APPLICANT:	Mr Ghanem

RESPONDENT: Ms Hilal

INDEPENDENT CHILDREN’S LAWYER: Vinita Khushal

FILE NUMBER: BRC 2013 of 2012

DATE DELIVERED: 22 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 and 22 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Martinovic (withdrew on 22 October 2013)

SOLICITOR FOR THE APPLICANT: Bartels Lawyers (withdrew on 22 October 2013)

COUNSEL FOR THE RESPONDENT: Mr Ashcroft

SOLICITOR FOR THE RESPONDENT: R A Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pendergast

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

Orders

IT IS ORDERED BY CONSENT THAT

1. All previous Orders be discharged.

2. A further and updated Family Report be prepared by Mr L.

3. Any updated material be limited to an affidavit by each of the Father and the Mother to be filed and served as follows:

   (a)       the Father by not later than 16 January 2014;

   (b)       the Mother by not later than 23 January 2014; and

   (c)the Father and the Mother strictly by response (if any) by not later than 6 February 2014.

4. The Independent Children’s Lawyer file and serve any updated material by not later than 30 January 2014.

5. All parties file and serve a Case Information document by not later than 10 February 2014.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The Father spend supervised time with the children, S born … June 2002, B born … October 2003, T born … November 2004, F born … August 2007, N born … March 2009 and H born … July 2010, as may be arranged through C Contact Centre.

2. The Father pay for the costs of the supervised visits.

3. The Independent Children’s Lawyer obtain an updated report from C Contact Centre prior to the final hearing of this matter and she have liberty to file an affidavit annexing such report fourteen (14) days prior to the final hearing. If the Independent Children’s Lawyer is unable to obtain funding for such report then it will be funded by the Father.

4. The Father spend supervised time with the children, S born … June 2002, B born … October 2003, T born … November 2004, F born … August 2007, as may be arranged through C Contact Centre and more specifically as follows:

   (a)       with S and T together once per month for no longer than one hour;

   (b)       with B and F together once per fortnight for no longer than one hour;

   (c)inclusion of M in contact with the children occur as recommended from time to time by the supervisor but not more than once per month;

   (d)the Father limit his gift giving to the children to special occasions such as birthdays and Eid and otherwise provide the children with gifts only in accordance with the recommendations of the supervisor;

   (e)the Father be allowed to take photographs of the children and to bring photographs to show the children provided that he does so in accordance with the recommendations of the supervisor;

   (f)the Father refrain from asking the children for hugs and kisses, and questioning the children about their affection for him and shall wait for the children to initiate affectionate gestures and comments; and

   (g)the parties otherwise will be guided by the recommendations of the supervisor generally as to therapeutic interventions.

5. The Father attend and complete a 3P parenting program and he shall register and enrol in such a program within twenty-one (21) days.

6. The Father complete an anger management course with a recognised agency and provide the Independent Children’s Lawyer with a copy of his certificate of completion.

7. The Father and the Mother shall not enter into discussions about Court proceedings with the children.

IT IS FURTHER ORDERED THAT

1. The hearing of this matter be adjourned to 10:00am on 13 February 2014 for hearing on a final basis for two days.

2. The Father spend supervised time with the children, N born … March 2009 and H born … July 2010 together, as may be arranged through C Contact Centre, such time to be no less than once per fortnight for no longer than one hour.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghanem & Hilal 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 2013 of 2012

Mr Ghanem

Applicant

And

Ms Hilal

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The trial of these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (“the Act”) concern the children S, born in June 2002 now 11 years of age, B, born in October 2003 now 10 years of age, T, born in November 2004 now 8 years of age, F, born in August 2007 now six years of age, N, born in March 2009 now 4 years of age, and H born in July 2010 now 3 years of age.

2. The parties seeking competing parenting orders are the Applicant, Mr Ghanem (“the Father”) and the Respondent, Ms Hilal (“the Mother”). The children’s interests are independently represented in these proceedings by an Independent Children’s Lawyer appointed pursuant to section 68L of the Act.

3. The trial of these proceedings was set down for two days commencing yesterday. Shortly stated, it became apparent or increasingly obvious as yesterday progressed that there was a real prospect of the trial not being completed in the two days it was allocated. I commenced sitting at nine o’clock this morning in an effort to attempt to have the trial completed within the allocated time. However, in the result, because of evidence that fell from the Father yesterday, vis-à-vis Exhibit 3 in the proceedings being a letter earlier written by his solicitors, a conflict arose between the Father and his legal representatives such that leave was sought by them and granted to withdraw from the proceedings this morning.

4. It was obvious at that point that the trial would not be completed today in terms of the remaining evidence and submissions. It had been foreshadowed that there were some seven witnesses still to be cross-examined including the Mother. More particularly, whilst the Father reads and understands English, it is his wish to be legally represented in the proceedings given the issues involved.

5. I need not discuss those issues in great deal but suffice to summarise that whilst, on one level, the competing applications concern the amount of time the Father spends with the six children and the circumstances in which that time is spent, there are a number of underlying issues of significance. These include the Mother’s allegations of family violence, including excessive disciplining or physical abuse of the children by the Father; the Mother’s allegations of abuse surrounding her assertion of the Father’s alleged sexual abuse of her daughter D; an allegation by the Mother to the effect that the Father was or is neglectful towards the children; some risk identified by the Mother of the potential for the Father to abscond with the children to Lebanon; and the Mother would say the children’s own views about the Father including what she says are their fears of him.

6. For the Father’s part, he attributes the children’s present views to the interruption of his time with them brought about by the allegations surrounding D that led to a criminal trial held last year and what he describes as “brainwashing” of the children by the Mother.

7. To assist the Court, a report was prepared by family consultant Mr L obtained by the Independent Children’s Lawyer but that report is dated 5 December last year and is attached to his affidavit filed 23 January 2013. It was that report which informed the Court for the purpose of the interim orders that were made in April 2013 which orders essentially implemented the report writer’s recommendations for the Father to have supervised time with the children at a contact centre. Such time commenced following those orders and the evidence relied upon at trial included a report prepared by two of the supervisors, one of whom gave evidence yesterday but the main author was yet to be cross-examined on the report.

8. In the result, I indicated this morning that it seemed to me the Father’s application for an adjournment of the trial was irresistible in circumstances where the trial would not be completed in any event in the time allocated and, secondly, that an adjournment of the trial would enable an updated family report to be obtained so that the views of the children might be further explored by a family report writer in the context of there having been some resumption of time with the Father in the supervised setting referred to.

9. It was also apparent from the evidence of the Father yesterday that he had failed to comply with interim orders made in April which obliged him to attend a Triple P parenting course and an anger management course. I had raised with his counsel yesterday the prospect of the Court exercising its discretion not to hear further from the Applicant on his application given his apparent disobedience of orders of the Court. In the result, an adjournment will also afford the opportunity for the Father to remedy his non-compliance with the existing orders.

10. In these circumstances, discussions between the parties have resulted in broad agreement in terms of the interim orders to now be made pending the adjournment of the proceedings as a part-heard trial to the 13 and 14 February 2014.

11. Admitted and marked as Exhibit 5 in the proceedings will be the proposed directions and orders that were handed up to me this afternoon. In relation to those directions and orders, they are essentially agreed save in respect of two items, namely with respect to paragraph 3 an issue was raised by Mr Ashcroft on behalf of the Mother as to the potential open-endedness of orders being made in terms as expressed leading to a great deal more evidence being filed. Mr Ghanem, the Applicant, and Mr Ashcroft, on behalf of the Respondent, agreed to some change to the written order as expressed such that it will provide, in effect, for any updated material to be limited to an affidavit by each of the Applicant and the Respondent to be filed on the dates expressed in paragraph 3 but that limitation should not be applied to the Independent Children’s Lawyer who will, amongst other things, need to file an updated report from Mr L and perhaps also for further reports to be obtained from the supervisors of time between now and February.

12. The remaining issue, which in relative terms in the scheme of things might be seen as minor, relates to paragraph 8(a)(ii) of the proposed orders. As expressed, the orders provide for the children N and H to spend supervised visits with the Father once per fortnight for no longer than one hour. The Father contends that that order ought provide for there to be weekly time with those two children.

13. The orders otherwise achieved the objective identified by the supervising service that there will be advantage to the children if the supervised time is broken up in the sense of the children not all together spending the same time with the Father in that supervised setting. On the evidence of the report which remains to be tested by the other report writer, it is certainly indicated that there have been some disadvantages for the children and indeed for the Father in dealing with all six children together on the occasions of supervised time. Helpfully, the orders that have been agreed achieve the objective that there is some separation of the children with the Father spending time with two of the children on each occasion, as provided for.

14. As already noted, N is four years of age and H is three. The Father’s contention that the time should be weekly is essentially predicated upon their ages. For the Mother’s part, it is said that notwithstanding that the provision is made for separate visits, the logistical or the practical requirement is that she has to take all six children to the visits unless she can obtain childcare assistance. It is also said that there is no evidence as such before the Court at this stage, pending Mr L’s further interviews, as to the desirability or otherwise of the particular time involved and that the present order as drafted is consistent with the existing order made in April 2013.

15. I accept that, in these circumstances, minimal disruption to the existing interim order ought be made such that beyond the separation of the individual children as contemplated by the orders, there ought not be at this stage interference with the order so far as N and H is concerned in terms of spending fortnightly time with the Father. I note that the breaking up of the children’s time with the Father comes with the corollary that each of the groups of children will be able to spend more one-on-one time with the Father so to the extent that N and H might be said to have responded well to visits to the Father, that can be maximised nevertheless in circumstances where they are the only two attending on their visits.

16. For those reasons, I make orders in terms of the draft that has been marked as an exhibit with the amendments to paragraph 3 that I have noted which will appear in the final form of the order as issued.

17. The only other matter contended for by the Father was that there ought be some order made for S to telephone him. I am not minded to make such an order at this stage given that evidence surrounding S’s views, including views to some extent expressed of a kind of her not wishing to have time or communication with the Father, remain to be tested. I do not want, at this stage, to make a further order that may simply result in further controversy not apparent at the moment in terms of an order that might not be complied with or might be the subject of debate at the resumed trial.

18. I therefore make orders accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 October 2013

Associate:

Date: 23 October 2013