FEDERAL CIRCUIT COURT OF AUSTRALIA
Ghazal & Edmiston [2021] FCCA 732
File number(s): PAC 1816 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 23 April 2021 Catchwords: FAMILY LAW – Parenting – young children – no relationship with father since separation – separation nearly eight years ago – post separation harassment and intimidation of the mother – serious findings of family violence perpetrated by the father – lack of capacity and insight – unacceptable risk of harm – mother to have sole parental responsibility for the children – children to live with mother – children spend no time with the father. Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68, 102NA. Cases cited: Banks & Banks [2015] FamCAFC 36
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1
Starr & Duggan [2009] FamCAFC 115
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92Number of paragraphs: 90 Date of hearing: 12 February 2021 Place: Parramatta Appearing for the Applicant: In person Appearing for the Respondent: Ms Sipka Solicitors for the Respondent: Forshaw Lawyers Counsel for the Independent Children’s Lawyer: Mr Fermanis Solicitors for the Independent Children’s Lawyer: Claremont Legal ORDERS
PAC 1816 of 2018 BETWEEN: MR GHAZAL
Applicant
AND: MS EDMISTON
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
23 APRIL 2021
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the children X, born in 2012 and Y born in 2010.
2.The children shall live with the mother.
3.The children shall spend no time and have no communication with the father.
4.X, born in 2012 and Y born in 2010 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X, born in 2012 and Y born in 2010. The mother shall be the only person with ‘parental responsibility’ of the children X, born in 2012 and Y born in 2010 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2012 and Y born in 2010.
5.Pursuant to section 65Y of the Family Law Act 1975, the mother shall be entitled to remove the children, X born in 2012 and Y born in 2010 from the Commonwealth of Australia at such times, for such purposes and for the purpose of travelling to such destinations as she may desire from time to time without the consent of the father.
6.Pursuant to section 68B of the Family Law Act 1975 the father, Mr Ghazal, shall be and is hereby restrained from contacting the mother Ms Edmiston born in 1987 or the children X born 2012 and Y born in 2010, by any means whatsoever and shall be further restrained from approaching any residence at which Ms Edmiston or the children reside from time to time, any place of employment, school, vacation care or similar service provided to…
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- Ghazal & Edmiston [2021] FCCA 732
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- [2021] FCCA 732
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CaseChat Overview and Summary
The court was required to determine several key legal issues. These included the allocation of sole parental responsibility for the children, where the children should live, the extent of any time or communication the children should have with the father, and whether the mother should be permitted to travel internationally with the children without the father's consent. Furthermore, the court needed to consider the father's entitlement to apply for and be issued with Australian passports for the children, and whether to impose restraining orders against the father.
Obradovic J's reasoning was heavily influenced by the history of family violence and the father's persistent harassment and intimidation of the mother and children following their separation. The court noted the existence of an interim apprehended domestic violence order made in December 2012, which was subsequently made final in January 2013 for two years. The judgment detailed numerous instances between January 2013 and January 2014 where the father engaged in behaviour described as an "unrelenting campaign of harassment and intimidation," including unwanted approaches, persistent communication via text messages, gifts, and appearances at the mother's home and public places frequented by the mother and children. The court applied principles related to the best interests of the children and the need to protect them and the primary caregiver from family violence.
Consequently, the court made orders granting the mother sole parental responsibility for X and Y, stipulating that the children shall live with the mother. The orders further directed that the children shall spend no time and have no communication with the father. The mother was permitted to travel internationally with the children without the father's consent and was designated as the sole person with parental responsibility for passport applications. Pursuant to section 65Y of the *Family Law Act 1975* (Cth), the mother was entitled to remove the children from Australia as she desired, and pursuant to section 68B of the *Family Law Act 1975* (Cth), the father was restrained from contacting the mother or children by any means and from approaching specified locations.
Orders
Orders of the court
PAC 1816 of 2018
BETWEEN:
MR GHAZAL
Applicant
AND:
MS EDMISTON
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
23 APRIL 2021
THE COURT ORDERS THAT:
1. The mother shall have sole parental responsibility for the children X, born in 2012 and Y born in 2010.
2. The children shall live with the mother.
3. The children shall spend no time and have no communication with the father.
4. X, born in 2012 and Y born in 2010 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X, born in 2012 and Y born in 2010. The mother shall be the only person with ‘parental responsibility’ of the children X, born in 2012 and Y born in 2010 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2012 and Y born in 2010.
5. Pursuant to section 65Y of the Family Law Act 1975, the mother shall be entitled to remove the children, X born in 2012 and Y born in 2010 from the Commonwealth of Australia at such times, for such purposes and for the purpose of travelling to such destinations as she may desire from time to time without the consent of the father.
6. Pursuant to section 68B of the Family Law Act 1975 the father, Mr Ghazal, shall be and is hereby restrained from contacting the mother Ms Edmiston born in 1987 or the children X born 2012 and Y born in 2010, by any means whatsoever and shall be further restrained from approaching any residence at which Ms Edmiston or the children reside from time to time, any place of employment, school, vacation care or similar service provided to the children or being within 100 metres of such premises.
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 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.
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The mother moved back into the home with the children in December 2012. On 12 December 2012 and interim ADVO was made for the protection of the mother and children. That ADVO was made final on 9 January 2012 and was entered for a period of two years.Post Separation Harassment and Intimidation During the period between January 2013 and January 2014 the father engaged in an unrelenting campaign of harassment and intimidation towards the mother as follows: a.In or about January 2013, the father attended Suburb D Park where the mother was with the children. He then followed them and said to the mother “Ms Edmiston this is no good. It’s been two months. I miss you and the kids… I still love you, Y and X. Please give me one more change [sic] I promise I won’t hurt or yell at you again”. The mother told the father that she was going to call the police and the father left the location.b.On or around 11 February 2013, the mother received 19 text messages and one missed call from the father.c.On or around 13 February 2013, the father again approached the mother and children at Suburb D Park, he then spoke with the mother and Y. The father said to the mother “Hello Ms Edmiston, Happy Valentines Day…”. Later that day, the mother also discovered a red envelope in her mailbox with a red rose and love hearted shaped card which read “I love Ms Edmiston, Y and X – Mr Ghazal”.d.On or around 14 February 2013, the mother discovered a further white envelope in her mailbox. This was after she had been awoken by someone buzzing at her apartment intercom. The contents in the envelope bore the father’s signature. The mother advised her caseworker and then attended Suburb D Police Station. e.On or around 10 July 2013, the mother received a text message from the father which said “Happy Birthday Y I love Ms Edmiston, X, E, F”. The reference to E and F are the names the father would have given to any future children if they had got back together. f.On or about 12 August 2013, the father approached the mother while supervising the children playing at Suburb D Park and said to the mother “I love you, me to Ms Edmiston” and continued walking. g.On or around 13 August 2013, the father sent the mother a text message.h.On or around 23 August 2013, the mother and children were walking down a street and the father who was up ahead of them blew the mother a kiss and then ran away.i.On or around 12 December 2013, X fell off her bed and broke her collar bone. After receiving medical attention X continued to cry often so much so that the mother received complaints from her neighbours. In response to those complaints the mother put signs on her windows to explain the reason why X was crying. j.On or about 16 December 2013, the father stopped the mother who was pushing X in a pram and said “…What happened to X, I saw one of the signs and was worried about X…”. The father then kissed X and attempted to kiss the mother. He further continued to follow them towards their unit block. k.On or around 14 January 2014, the mother spotted the father standing outside the kitchen window as he said “hi Ms Edmiston”. The mother went away from the kitchen window and into the lounge room, however the mother could hear the father from the kitchen window saying “I forgive you for making all of the breaching on me. You should not come back to me straight way but after two or three days. You have my phone number”.l.On or around 22 January 2014, the father attended the mother’s home where she was outside with the children in the common area hanging clothes. The father said “hello Ms Edmiston” and proceeded to pick up X and say “daddy’s here”. The mother took the children back into their unit block. A similar incident also occurred on or about 29 January 2014. m.On or about 30 January 2014, X was screaming and the mother was trying to settle her when she heard the father’s voice say “hello X stop screaming”. The father was again standing outside the kitchen window, then the dining room window and then the bedroom window following the mother trying to get away.n.On or around 31 January 2014, the mother was returning from collecting the children from childcare when the father approached them passing through Suburb D Park. He invited the mother to a Restaurant the following day to celebrate his birthday.