Gulden & Nazmi
[2023] FedCFamC2F 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gulden & Nazmi [2023] FedCFamC2F 94
File number(s): MLC 2814 of 2021 Judgment of: JUDGE GLASS Date of judgment: 15 February 2023 Catchwords: FAMILY LAW– PARENTING – where the father seeks progression to shared care for two and half year old – where the parties are unable to effectively communicate – where the father has perpetrated family violence – where orders providing for sole parental responsibility and for the child to spend less time with his father than sought are in his child’s best interests Legislation: Family Law Act 1975 (Cth) ss 60CC, 60B, 60CA, 61DA, 65DAA, 65DAC, 65Y, 117(1) Cases cited: Boyle & Zahur & Anor (2017) FLC 93-814
Champness & Hanson (2009) FLC 93-407
Eastley & Eastley (2022) FLC 93-094
Groth & Banks [2013] FamCA 430
Keane & Keane & Anor (2021) 62 Fam LR 190
Lennon & Lennon [2011] FamCA 571
Manifold & Alderton (2021) FLC 94-015
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Oberlin & Infeld (2021) FLC 94-017
Division: Division 2 Family Law Number of paragraphs: 70 Date of last submission/s: 1 February 2023 Date of hearing: 1 February 2023 Place: Melbourne Counsel for the Applicant: Ms Bacchetti Solicitor for the Applicant: MS Justice Legal Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: Marcou & Associates Pty Ltd ORDERS
MLC 2814 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GULDEN
Applicant
AND: MS NAZMI
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
15 February 2023
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for X, born in 2020 (“X”) on the condition that she:
(a)provide to the Father as much prior notice as practicable of any decision she proposes to make with respect to any major long term issue affecting X;
(b)consider any response the Father provides with respect to the proposed decision; and
(c)advise the Father as soon as practicable of her final decision.
2.X live with the Mother.
3.X spend time with the Father:
(a)from 4:30pm Monday until 4:30pm Tuesday each week;
(b)from 2 July 2023, from 9:00am Monday until 4:30pm Tuesday each week;
(c)from the commencement of Term 1 in 2026:
(i)during school terms, each alternate weekend from after school (or 3:30pm if a non-school day) Friday until before school (or 9:00am if a non-school day) Tuesday;
(ii)for half of each school term holidays, as agreed between the parents, and in default of agreement, the first half, commencing at 4.30pm on the last day of school, and concluding at 12.00pm on the middle Saturday;
(iii)for half of the long summer school holidays in each year as agreed between the parents, and in default, on a week about basis, with the Father to have the first week in odd numbers years and the second week in even numbered years and each alternate week thereafter; the first week shall commence at 4.30pm on the last day of school and conclude at 12.00pm on the following Saturday; and
(d)at such other times as agreed in writing between the parents.
4.Despite any Order to the contrary, X spend time with his parents on the following special occasions:
(a)with the Father for Father’s Day, as agreed and failing agreement, from 12:00pm on the Saturday before Father’s Day until 6:00pm on Father’s Day;
(b)with the Mother for Mother’s Day, as agreed and failing agreement, from 12:00pm on the Saturday before Mother’s Day until 6:00pm on Mother’s Day;
(c)with each parent for his birthday (if he is not ordinarily spending time with that parent) as agreed and failing agreement:
(i)On a school day from the conclusion of school until 7:00 pm;
(ii)On a non-school day from 3:00pm until 8:00pm;
(d)with each parent on the parent’s birthday as agreed and failing agreement, if the parent’s birthday falls on a day when X is not already spending time with them, then X spend time with them:
(i)from the conclusion of school at 3:30 pm to 7:00 pm;
(ii)if the birthday falls on a non-school day from 9:00 am to 3:00 pm;
(e)on the Muslim Holiday of Bayram, if X is not already spending time with the Father, from 11:00am to 7:00pm on the first day of Bayram;
(f)for Christmas in odd years:
(i)with the Father from 5:00pm on Christmas Eve until 5:00pm on Christmas Day;
(ii)with the Mother from 5:00pm on Christmas Day until 5:00pm on Boxing Day;
(g)for Christmas in even years:
(i)with the Mother from 5:00pm on Christmas Eve until 5:00pm on Christmas Day; and
(ii)with the Father from 5:00pm on Christmas Day until 5:00pm on Boxing Day.
5.Changeover shall occur between the parents at KFC on the B Highway.
6.When X commences school, changeover shall occur at X’s school and outside of school hours as agreed between the parents in writing and in default of agreement at KFC on the B Highway.
7.The parents shall forthwith implement the ‘AppClose’ application or such other communication application as may be agreed by the parents with respect to day-to-day communication about arrangements for X and his welfare.
8.The parents advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
9.The parents do all things necessary to enrol X in a State school.
10.Both parents be at liberty to attend any extracurricular activities that X is involved in.
11.Both parents be at liberty to attend any school events relating to X’s attendance at school, including parent /teacher interviews, fetes, assemblies/awards ceremonies and concerts.
12.Both parents be permitted to communicate directly with X’s school and sporting or any other relevant bodies to receive school notices, information, newsletter, school reports, school photographs and any other necessary information about X’s progress at their own expense.
13.The parents shall authorise X’s General Practitioners and treating medical and/or allied health practitioner/s to provide either parent with any information or medical reports relating to X at that parent’s cost (if any).
14.The parents advise each other as soon as practicable of any significant illness and/or injury suffered by X or either of them whilst in their respective care, along with the names and contact details of any treating medical, dental, psychologist and/or allied health professionals so that each parent may liaise with same.
15.Neither party take X to any counsellor, therapist, psychologist or other mental health professionals without the consent in writing of the other party.
16.Unless otherwise agreed in writing, the parents continue to attend upon X’s regular General Practitioner in order to ensure continuity of care for X, save for instances of emergency.
17.In the event X or either of them requires admission to hospital (including attendance at an emergency department) or specialist treatment, then both parents shall be permitted to be present/attend same.
18.The parents and their servants and agents be and are hereby restrained from:
(a)Physically disciplining X or threatening to physically discipline X;
(b)Denigrating each other and their families to or in the presence or hearing of X and permitting any other person to do so;
(c)Passing messages through X to the other parent;
(d)Discussing parenting disputes and/or issues with or in the presence of X and permitting any other person to do so; and
(e)Exposing X to any conflict between the parents and their families and permitting any other person to do so.
19.In the event the parents are in dispute with any of the Orders in the future, the parents are to first attend upon a Family Dispute Resolution Service to negotiate and discuss the issue before the parents undertake court proceedings.
20.All extant applications be dismissed.
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 a pseudonym Gulden & Nazmi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, born in 2020. X is now two and a half years old.
X’s parents separated in October 2020, when he was 3 months old. Since that time, he has lived with his mother, Ms Nazmi. He initially spent limited time with his father, Mr Gulden, at Ms Nazmi’s residence. That time ceased in December 2020, when X was approximately 6 months old.
In May 2021, interim consent Orders provided for X to spend time with Mr Gulden on a professionally supervised basis for two hours twice per week. In August 2021, further interim consent Orders provided for X to spend time with his father twice each week for two hours, increasing to three hours when X was approximately 16 months old. In December 2021, one of the weekly visits was extended to four hours. The following month, further interim Orders provided for X to spend four and a half hours with his father twice each week, then from March 2022, three times per week for between four and a half and six hours, and finally upon X turning two years old, overnight once each week and on another occasion each week for four hours.
The parties agree that X will remain living primarily with Ms Nazmi. To their credit, they have agreed on a substantial number of other orders they contend to be in X’s best interests. Arising for determination essentially is the allocation of parental responsibility for X and the time he is to spend with his father.
Mr Gulden now proposes that the parties have equal shared parental responsibility for X and that X spend time with him each week from midday Sunday until 5:00pm Monday and each Tuesday from midday until 5:00pm. He proposes that from July this year, X spend time with him each week for two nights from midday Sunday until 5:00pm Tuesday. He then proposes from January 2026, X spend time with him each week for three nights, from midday Sunday until 10am Wednesday. The other particulars of his proposal are contained in a Minute submitted at the commencement of the hearing. He relies on his Amended Initiating Application and Affidavit filed on 18 January 2023, the Family Report and a Family Dispute Resolution certificate dated 10 February 2021.
Ms Nazmi now proposes that she have sole parental responsibility for X and that he spend time with Mr Gulden each week from 4:30pm Friday until 4:30pm Saturday. From July 2023, she proposes X spend time with his father for two nights each fortnight, being each alternate weekend from 4:30pm Friday until 4:30pm Sunday. The other particulars of her proposal are contained in her Outline of Case filed 24 January 2023.
STATUTORY FRAMEWORK
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). I am guided by the objects of that Part and the principles underlying those objects.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him.[3] The presumption does not apply if there are reasonable grounds to believe either of X’s parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
[3] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that X’s parents should have equal shared parental responsibility for him, I am required to consider whether X spending equal or substantial and significant time with each of his parents is in his best interests and reasonably practicable.[4]
[4] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
PRIMARY CONSIDERATIONS
The benefit to X of having a meaningful relationship with both of his parents
It is common ground that X will spend regular overnight time with each of his parents. Whilst Mr Gulden’s proposal will see X having the opportunity to spend more time with his father, meaningful in this context is a qualitative adjective and not a strictly quantitative one.[5]
[5] Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 at [115], [121].
Consultant Ms C opines that Mr Gulden’s proposal “supports the development of a more meaningful relationship between X and his father”.[6] It is, however, important to note that a meaningful relationship is a legal construct rather than a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship.[7]
[6] Family Report dated 11 November 2022 (“Family Report”), paragraph 86.
[7] Champness & Hanson (2009) FLC 93-407 at [191].
Consultant Ms C herself opines that Mr Gulden’s proposal is not “vastly different” from Ms Nazmi’s suggestion that X spend time with his father on four occasions per fortnight, being every second weekend and one evening during the week.[8] I am not satisfied that there is a substantial difference in terms of the benefit to X of having a meaningful relationship with each of his parents between arrangements of those two types.
[8] Family Report, paragraph 86.
Attending Ms Nazmi’s proposal are a number of practical difficulties. Firstly, the time she now proposes for X to spend with his father occurs on days his father is working. Secondly, upon X commencing school, it deprives X of the opportunity to participate in his weekday routine with his father. Those matters impede the benefit to X of having a meaningful relationship with each of his parents.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Neither party contends that X is at unacceptable risk of harm in the relevant sense in the other party’s care. Both propose that X spend unsupervised overnight time with each of his parents. Ms Nazmi advances that position despite her allegations of Mr Gulden having perpetrated family violence, to which allegations I will return.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to his views
Unsurprisingly given his age, there is no evidence X has expressed any views to which any weight should be given.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
Consultant Ms C’s unchallenged opinion, which I accept, is that X has developed his primary attachment with Ms Nazmi. They displayed a “mutual delight in each other” during the observation session with Consultant Ms C, with Ms Nazmi “entirely engaged with X” and behaving in a “naturally attuned manner” towards him.[9] Ms Nazmi was able to support X to “regulate his emotions and calm himself down”.[10]
[9] Family Report, paragraph 73.
[10] Family Report, paragraph 74.
During X’s observation session with his father, he was asleep, limiting the extent to which their interactions could be assessed. Consultant Ms C opined that the fact X opened his eyes briefly several times whilst in the care of his father and immediately settled back to sleep, suggested X “felt comfortable and secure in the presence of his father and grandmother.”[11] The opinion was also unchallenged and I accept it.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to him, to spend time with him, and to communicate with him
[11] Family Report, paragraph 77.
The parties dispute the extent to which the other contributed to the cessation of X’s time with his father from approximately December 2020 to May 2021. Ms Nazmi deposes to allowing Mr Gulden to spend time with X as often as he wanted. She deposes that despite her contacting Mr Gulden on multiple occasions after Christmas 2020, he spent no further time with X prior to the proceedings. Mr Gulden deposes to receiving a text message from Ms Nazmi on 14 January 2021 advising that he would not see X until he completed a parenting course. He also deposes to not being permitted to see X despite having completed the course.
Ms Nazmi denied in cross examination that she stopped Mr Gulden from seeing his son at all. She also denied that she was controlling of their time together. She gave oral evidence of messaging Mr Gulden with words to the effect of “let me know when you can see X”; “would you like to see X?” She also gave evidence that Mr Gulden messaged her and told her that he would let her know when he would come and see his son, but did not then contact her for five or six months. She also gave evidence of occasions when Mr Gulden ceased spending time with X after an hour.
Aside from the one text message referred to, Mr Gulden’s evidence that he was not permitted to see X is conclusory, and devoid of facts that would enable the Court to reach the same conclusion. Ms Nazmi’s particularised evidence relating to the parties’ communication was not challenged. There was nothing about Ms Nazmi’s oral evidence on the topic that caused me to doubt its reliability. I do not accept that Ms Nazmi stopped Mr Gulden’s time with X.
Ms Nazmi’s evidence that Mr Gulden failed to spend ordered time with X on Father’s Day in 2022 was unchallenged and I accept it. I conclude that Mr Gulden has failed to take the full extent of the opportunities available to him to spend time with X.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain him
It appears to be common ground that Mr Gulden pays child support for X as assessed, although Ms Nazmi gave oral evidence that she could not understand the reduction in child support from $400 per month to $23 per week.
The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
No change is proposed to X’s primary living arrangements, although Mr Gulden proposes a substantial increase in X’s time with him to comprise a nearly equal sharing of that time. I will return to the impact on X of spending substantial overnight time away with his primary attachment figure at his young age.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis
Both parties live in the Region D suburbs of Melbourne. Mr Gulden lives in Suburb E and Ms Nazmi lives in Suburb F. There are no particular practical difficulties or expenses associated with X spending time and communicating with his parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for his needs, including emotional and intellectual needs
Consultant Ms C observes that X has “consistently been able to rely upon [Ms Nazmi] to meet his needs and ensure his safety”.[12] She considers that Ms Nazmi “seemed to be highly attuned to X’s needs across all domains of parenting”[13] and “appears to provide a highly structured environment for X, which would ensure that X’s needs for stability, predictability and consistency are met.”[14] She opines that Ms Nazmi has exposed X to “strong role modelling in terms of appropriate mealtime behaviours and eating habits (…) and using his manners”.[15] She concludes that “Ms Nazmi demonstrated exceptional parenting skills, and she evidenced a capacity to meet X’s physical, emotional, social and cognitive development needs”.[16] None of Consultant Ms C’s evidence in that respect was challenged and I accept it.
[12] Family Report, paragraph 87.
[13] Family Report, paragraph 36.
[14] Family Report, paragraph 37.
[15] Family Report, paragraph 75.
[16] Family Report, paragraph 84.
With respect to Mr Gulden’s capacity to provide for X’s needs, Consultant Ms C opined in November 2022 as follows:
Moving forward, it will be critical for [Mr Gulden] to develop skills and experience in environments which expose him to some of the more challenging, day to day aspects of parenting. [Mr Gulden]’s proposal that spend time arrangements should progress more towards a shared care schedule will only be viable if he gains greater knowledge and experience across elements of parenting such as children’s routines, nutritional requirements, and [X]’s developmental needs. Furthermore, [Mr Gulden] will need to evidence some commitment around adapting his hours of work in order to meet [X]’s day to day needs.[17]
[17] Family Report, paragraph 89.
Consultant Ms C accordingly considered there to be two matters that impact upon the viability of a shared care schedule. Firstly, Mr Gulden needed to gain greater knowledge and experience across elements such as X’s routines, nutritional requirements and developmental needs. Secondly, he needed to demonstrate commitment around adopting his hours of work to meet X’s day to day needs. Mr Gulden has failed on both fronts.
Mr Gulden has failed to make any enquiries about X’s routines. Mr Gulden gave uncontradicted evidence that X, about 50 per cent of the time, is up until after 10:00pm watching television on the couch with his grandparents. Ms Nazmi’s oral evidence is that X goes to bed between 7:30pm and 8:00pm. She gave evidence that X going to bed with his father so late puts “a massive impact on X during the day, being so tired. So he will nap by the time I pick him up, which puts him out of routine for his normal routine at home with myself until I have to put him back into that routine again.”
Consultant Ms C gave oral evidence that “communication between the parties about appropriate routines is really important.” She gave evidence that simply sharing that information would not necessarily alleviate the issue, but “it would certainly be extremely helpful if the parties were able to communicate information about routines and expected bedtimes.” She emphasised that it was her expectation that both the parties would do so.
There is no evidence that Mr Gulden has made any enquiries about X’s routine since a letter was sent by his solicitor in October 2021. The absence of Mr Gulden making any other enquiries about X’s routines suggests that he has a limited capacity to provide for his son’s needs. So much is surprising given the opinions expressed by Consultant Ms C in November.
Mr Gulden suggested in closing address that the issue could be alleviated by the Court making an order that Ms Nazmi provide information to Mr Gulden in relation to X’s routines. I respectfully disagree. Such an order will not necessarily improve Mr Gulden’s capacity to provide for his son’s needs. That he has not only failed to make past enquiries, but apparently sees no issue with his two year old son regularly being up until 10:00pm at night suggests that he is unlikely to adhere to a routine, even if it is known to him. Contrary to his sworn evidence, he has not learned all of X’s needs.
Mr Gulden also agreed that he refuses to tell Ms Nazmi what X has eaten whilst in his care. He sought to justify his position by giving evidence “it happens vice versa”. There is no evidence of Mr Gulden making enquiries in relation to X’s nutritional needs. Mr Gulden also accepts that he fails to always advise Ms Nazmi of injuries suffered by X. His refusal to provide information to Ms Nazmi in relation to X’s nutrition and his failure to always provide information about injuries also reflects poorly on his capacity to provide for his son’s needs.
Mr Gulden has failed to adapt his working hours in order to meet X’s day to day needs. Existing interim Orders provide for X to spend Sunday night with his father from 5:00pm. Despite deposing to not working on Sundays in his affidavit,[18] he gave oral evidence that he always works on Sundays. He gave evidence that he starts work at 3:00pm on Sundays, leaves work for an hour to collect X at 5:00pm and drops him at his parents’ house before returning to work. Although he said he sometimes does not have to go back to work, he also gave evidence that “[m]ost of the times I work for three to four hours and I’m back home.” Mr Gulden is accordingly mostly unavailable to attend to his son’s needs during the only overnight time he spends with him.
[18] Mr Gulden’s Affidavit filed 18 January 2013, paragraph 83.
Consultant Ms C referred to Mr Gulden needing to show commitment and adapting his hours of work. Whilst Mr Gulden may have had difficulties changing his work hours, it was also open to him to suggest changing the night on which X spent time with him to a night when he was not working. There is no evidence he did so. Despite the significance Consultant Ms C afforded to the issue, Mr Gulden has failed to commit himself to his son’s care by arranging his work schedule. So much also reflects poorly on his capacity to provide for his son’s needs.
As opined by Consultant Ms C, all of these matters detract from the viability of a shared care arrangement. They are not matters that can be remedied simply by X spending more time with Mr Gulden, as he suggests.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
X is two years old. Consultant Ms C opines that “it is not beneficial for young children to be separated from their primary attachment figure for lengthy periods of time, particularly overnight”.[19] She considers it would be favourable for X to spend frequent periods of time with his father during the day, rather than staying with him for multiple, consecutive nights. That opinion was not challenged by Mr Gulden and I accept it.
If X is an Aboriginal child or a Torres Strait Islander child, X’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
[19] Family Report, paragraph 87.
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of his parents
Consultant Ms C referred to the fact that despite the parties’ punitive grievances and misgivings about each other, they “generally appear value [sic] the role that each other plays in the lives of their child.”[20] Both “expressed respect for the need for both parents to be active participants in X’s life.”[21] To their credit, despite their dispute, neither party denigrated the other to Consultant Ms C. However, having heard their oral evidence, I do not share Consultant Ms C’s optimism “that there is the potential for the parties to progress towards a more co-parenting arrangement into the future”.[22] There has been an almost complete absence of engagement with the various matters raised by Consultant Ms C in her report since its issue.
[20] Family Report, paragraph 70.
[21] Family Report, paragraph 70.
[22] Family Report, paragraph 81.
I have already referred to matters that demonstrate Mr Gulden’s failure to seek or exchange information in relation to X’s routines, nutrition and injuries, as well as his failure to commit himself to being available during X’s time with him. Those matters also reflect poorly on his attitude to the responsibilities of parenthood.
The absence of communication between the parties also reflects poorly on their attitude to the responsibilities of parenthood. Consultant Ms C reports that:
Both parties reported that they are unable to effectively interact with one another in any matters pertaining to [X]’s needs. Both parties are desirous of these communications improving, though neither party could identify how to facilitate this.[23]
[23] Family Report, paragraph 65.
Mr Gulden accepted in cross-examination that the parties do not have good communication. His oral evidence in relation to seeking to address the issue lacked credibility. When asked why he and Ms Nazmi do not communicate well, he gave evidence that: “I’ve asked numerous times throughout the years that we should come together and work on this, but no – no responses has been – come back.” When asked for detail about those invitations, he referred to invitations through lawyers and for mediation. He conceded there was only one request for mediation prior to the commencement of the proceedings. He gave evidence that the lawyers’ communication related to resolving issues to avoid the Court proceedings, rather than resolving their lack of capacity to communicate. He also gave evidence that he had suggested to Ms Nazmi on numerous occasions to resolve the issues without the Court. He was then asked: “How were you going to come together and work on your communication?” He responded “I don’t have an answer to that.” I am not satisfied that Mr Gulden has made any proposal that would assist in improving the parties’ communication.
The absence of such a proposal is surprising in light of the recommendation made by Consultant Ms C in November 2022 “[t]hat the parties would benefit from attending Family Therapy, with the aim of supporting them to communicate and interact more effectively.”[24] The centrality of that recommendation to Consultant Ms C’s ultimate recommendation cannot be overstated. She went to opine that “spend time arrangements between X and Mr Gulden could gradually transition (over the next 2 years) towards a shared care arrangement” [25] once the parties have undertaken that Family Therapy and Mr Gulden has undertaken an online Circle of Security program.
[24] Family Report, paragraph 94.
[25] Family Report, paragraph 97.
Not only is there no evidence before me of any proposals having previously been advanced for the parties to engage in family therapy, neither party makes any proposal for them to now do so. Leaving aside the Court’s reservations about the power to make stand-alone orders directing parties to undertake therapy,[26] absent any proposal from the parties to attend family therapy, I respectfully reject Mr Gulden’s submission that I can now make an order for the parties to do so. If nothing else, I have no evidence of who it is that might undertake such a role.
[26] Oberlin & Infeld (2021) FLC 94-017 at [51]–[52] and the cases there cited; see also Eastley & Eastley (2022) FLC 93-094 at [58].
I also do not accept any suggestion that the mere participation of the parties in family therapy sufficiently founds a finding that their communication would necessarily improve. The efficacy of therapeutic intervention is never certain. Consultant Ms C gave oral evidence that “if the parties aren’t demonstrating that they’re able to actually progress any communication or progress any of the recommendations, I would be suggesting that things stay as they are at the moment in terms of spend time.”
Whilst, as Consultant Ms C opines, there may be “no realistic impediments to the parties being able to communicate and interact with one another”[27], the evidence does not satisfy me that the parties are presently able to meaningfully communicate with each other to ensure X’s interests are met, or that they will be able to do so in the future.
[27] Family Report, paragraph 90.
Any family violence involving X or a member of X’s family
Ms Nazmi makes a number of allegations of family violence against Mr Gulden. He admits that he called Ms Nazmi a “cunt” and “dog”. He also admits that he kicked in a cupboard door at a time when Ms Nazmi was not around. He otherwise denies Ms Nazmi’s allegations.
Mr Gulden effectively submits that I should prefer his evidence in circumstances where Ms Nazmi exaggerated her evidence in relation to other matters. Ms Nazmi deposed to X having jumped into her arms. She accepts that X did not physically jump, rather he threw himself at her. Ms Nazmi also told Consultant Ms C that Mr Gulden threw X at his maternal grandmother. She gave oral evidence that she meant that Mr Gulden had forcefully handed X over. I am not satisfied that infelicity in expression generally discredits Ms Nazmi’s evidence. I am also not satisfied that the absence in the family report of particular phrases Ms Nazmi deposes to Mr Gulden using, generally impugns her credibility.
Mr Gulden also effectively submits that I should prefer his evidence in circumstances where Ms Nazmi omitted relevant matters from her evidence. In particular, he refers to her failure to particularise what led up to the occasion when she asserts Mr Gulden grabbed her by the throat. Ms Nazmi also admits that she did not include in her affidavit the fact that she subsequently called the Police for advice. I am not satisfied those omissions generally impugn her evidence.
On the other hand, I have found that Mr Gulden’s evidence in relation to his proposal for the parties to come together to improve their communication lacked credibility, his affidavit evidence in relation to a central question of his work arrangements during X’s time with him was false, and his evidence that he had learned all X’s needs was also false.
In those circumstances, I feel an actual persuasion of the existence of the family violence alleged by Ms Nazmi, and accordingly am satisfied, on the balance of probabilities of the existence of those facts.[28] I accordingly make the following findings:
(a)In April 2019, Mr Gulden grabbed the steering wheel of a vehicle being driven by Ms Nazmi, causing them to veer off the road. He then punched the car door before exiting the vehicle. He subsequently grabbed Ms Nazmi by the throat. When Ms Nazmi tried to leave, he jumped on the hood of the vehicle, trying to stop her leaving.
(b)On several occasions during the parties’ relationship, when he was upset or angry, Mr Gulden hit or kicked walls, cupboards, and other objects. His behaviour caused Ms Nazmi to be extremely fearful of him and to suffer anxiety.
(c)In December 2020, Mr Gulden was angry and verbally abusive towards Ms Nazmi. He said to her “I will make sure I get X taken off you and you will never see him again”.[29]
If a family violence order applies, or has applied, to X or a member of his family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
[28] Keane & Keane & Anor (2021) 62 Fam LR 190 at [73], and the cases there cited.
[29] Ms Nazmi’s Affidavit filed 20 January 2023, paragraph 14(c).
There is no evidence of any current family violence order applying or previously applying to X or a member of his family.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
Aside from the question of the allocation of parental responsibility to which I will return, I do not consider that either party’s proposal is more or less likely to lead to the institution of further proceedings in relation to X.
Any other relevant fact or circumstance
Not relevant.
PARENTAL RESPONSIBILITY
Given I have found Mr Gulden to have engaged in family violence, the presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him is inapplicable.[30]
[30] Family Law Act 1975 (Cth), ss 61DA(2).
Mr Gulden nevertheless seeks an order that the parties have equal shared parental responsibility for X. Consultant Ms C recommends that such an order be made. She opines that:
… the sharing of parental responsibility is a viable and reasonable proposal. If [Ms Nazmi] was to have sole parental responsibility for [X], then there is the possibility that she may impede upon [X]’s ability to maintain a meaningful relationship with [Ms Nazmi].[31]
[31] Family Report, paragraph 90.
The allocation of parental responsibility will not directly impact the amount of time X spends with his father. Consultant Ms C gave oral evidence that in the event Ms Nazmi fails to keep Mr Gulden informed of matters relevant to X, their meaningful relationship may be impeded. I consider that risk to be minimal in circumstances where that meaningful relationship will be overwhelmingly facilitated by X spending time with his father as ordered.
In the absence of effective communication between the parties, I consider the proposal that they have equal shared parental responsibility for X to effectively be aspirational. So much is an unsatisfactory substitute for “the rational synthesis of the findings about the parties’ intractable and probably enduring conflict with their consequent legal obligation under section 65DAC of the Act”.[32] Put another way, I am not satisfied that the parties can or will comply with the mandatory requirements of section 65DAC given the lack of effective communication and conflict between them.[33]
[32] Manifold & Alderton (2021) FLC 94-015 per Austin J at [109].
[33] Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
I am accordingly not satisfied that it is in X’s best interests for his parents to equally share parental responsibility for him. I am accordingly not required to consider whether it is in X’s best interests or reasonably practicable to spend equal or substantial and significant time with each of his parents.[34]
[34] Family Law Act 1975 (Cth), s 65DAA.
Ms Nazmi proposes that she have sole parental responsibility for X. She submits that such an order would lessen the possibility of future disputes and future litigation. To exclude Mr Gulden from consultation and decision-making regarding major long term issues for X is “a very significant step, being a very serious interference with the fundamental rights of a person”.[35] Ms Nazmi submits that there could be an order that she keep Mr Gulden informed in relation to such decisions. I agree, but also consider that she should provide Mr Gulden with prior notice of any such decision and consider any input he offers. That will afford Mr Gulden the opportunity to have such input whilst ensuring that Ms Nazmi can make a final decision without the need to resort to further litigation. I consider such an outcome to be in X’s best interests.
[35] Lennon & Lennon [2011] FamCA 571 at [108]; Groth & Banks [2013] FamCA 430 at [179].
CONCLUSIONS
In the absence of any adequate communication between the parties or any proposal to remedy that deficiency, I am not satisfied that a progression to shared care is in X’s best interests. So much is consistent with Consultant Ms C’s oral evidence that failing family therapy and Mr Gulden undertaking a Circle of Security course occurring in a timely way, she “definitely wouldn’t be supporting progression towards shared care”. I have already referred to her other oral evidence that “if the parties aren’t demonstrating that they’re able to actually progress any communication or progress any of the recommendations, I would be suggesting that things stay as they are at the moment in terms of spend time.”
I conclude that X’s best interests are met by continuing to spend one night each week with his father. So much is also consistent with Consultant Ms C’s opinion that day time periods are more favourable for X rather than multiple, consecutive nights. Given the difficulties attending Mr Gulden working during the existing Sunday nights X spends with him, I consider X’s best interests are now met by spending Monday night with his father. I consider the 4:30pm changeover time proposed by Ms Nazmi to reflect X’s interests to ensure he is settled for his evening routines.
I consider that upon X turning three, the weekly visits should be extended to comprise two full days. Those days will coincide with Mr Gulden’s days off, maximising X’s opportunity to benefit from spending time with his father.
Upon X commencing school, he will no longer be available to spend Mondays and Tuesdays in his father’s care. I consider his best interests will then be served by spending alternate weekends with his father, including the existing Monday nights to maximise the prospect of Mr Gulden being available to spend that time with him. Consultant Ms C orally suggested that if time is not progressed towards shared care, then it progress to “the standard every second weekend” upon X starting school, depending on Mr Gulden’s work commitments.
Both parties propose an equal sharing of school holiday time, including a week about configuration of such time during the summer holidays. I prefer Ms Nazmi’s proposal which has a greater degree of particularity, thereby minimising the risk of further dispute between the parties.
I consider X’s best interests are met by the agreed arrangements for X to see his father on special occasions to be mirrored for his mother. Ms Nazmi did not oppose the making of such mirror provisions.
For Christmas, Ms Nazmi proposes that X spend time with her from 12 noon Christmas Eve until 6:00pm on Christmas Day. Mr Gulden proposes that X spend time with each of his parents alternating each year from 5:00pm Christmas Eve until 5:00pm Christmas Day with one parent and from 5:00pm Christmas Day until 5:00pm Boxing Day with the other parent. Ms Nazmi gave evidence that she has family celebrations for lunch and dinner on Christmas Day. Mr Gulden gave evidence that, despite his Muslim faith, he celebrates Christmas with X through gifts and a Christmas tree. I consider it to be in X’s best interests to share Christmas with each of his parents as is proposed by Mr Gulden so that he can participate in Christmas morning routines in each of their households in alternate years.
Ms Nazmi seeks that a passport issue for X. Mr Gulden opposes the application. Given parenting orders will be in force in relation to X, it is generally an offence for him to be taken out of Australia without the consent of both parties or order of the Court.[36] Given Ms Nazmi makes no application to travel internationally with X, and absent Mr Gulden’s consent to him so travelling, the issue of a passport for X is inutile. I am accordingly not satisfied it is in X’s best interests for a passport to now issue.
[36] Family Law Act 1975 (Cth), s 65Y.
Other orders sought by the parties were the subject of consent between them, including that X be enrolled in a State school. I find those agreed orders to be in X’s best interests.
Mr Gulden seeks an order that costs for an earlier court event be paid by Ms Nazmi. No submissions were advanced in support of the application and there is no evidence now before the Court in relation to it. There is accordingly no basis for any departure from the general rule that each party pay their own costs.[37]
[37] Family Law Act 1975 (Cth), ss 117(1).
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 15 February 2023
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