HABIB & IBRAHIM - [2018] FamCA 633

FAMILY COURT OF AUSTRALIA

HABIB & IBRAHIM

[2018] FamCA 633

FAMILY LAW – CHILDREN – Final parenting proceedings – where child has fractured relationship with the father – where mother has enmeshed relationship with child – where mother has little reflective capacity as to the child’s relationship with the father – where the father seeks orders facilitating the child live with him – where consideration of applicable principles – where Single Expert strongly supports child’s move to live with father - where appropriate that there be a hiatus in the child’s time with the mother – where orders made for child to live with father.

Family Law Act 1975 (Cth)

Goode and Goode: [2006] FamCA 1346
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v. GRR [2010] HCA 4

APPLICANT:

Mr Habib

RESPONDENT:

Ms Ibrahim

INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen Bell

FILE NUMBER:

PAC

3236

2016

DATE DELIVERED:

19 July 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

26, 27, 28, 29 March 2018, 17 and 18 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Godden Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen W Bell & Associates

Orders

That all previous parenting orders in relation to the child X born … 2009 (“the child”) be discharged.
That the child live with the father.
That the father be at liberty to choose to have the child reside at the home of the paternal aunt Ms B for such period as determined by him in consultation with the paternal aunt and the therapist appointed pursuant to these orders.
That the father have sole parental responsibility for major long term issues relating to the child.
That prior to the father making decisions relating to major long term issues as to the child including but not limited to his health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response provided such response is received within the stated period and notify the mother of his ultimate decision.
That the father as soon as practicable obtain a mental health referral for the child to attend upon Ms C (“the therapist”) for the purposes of therapeutic counselling and the child shall continue to attend on such therapist on such occasions as recommended by the therapist and for such period as recommended by the therapist.
That the mother and father shall cooperate with all reasonable requests made by the therapist for involvement by either or both of them in providing information to or in attending upon the therapist.
That leave is granted to the father to provide a copy of the Single Expert Report of Dr D dated 13 October 2017…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HABIB & IBRAHIM

Details

AGLC: HABIB & IBRAHIM [2018] FamCA 633
Case: [2018] FamCA 633
Decision Date: 19 July 2018

CaseChat Overview and Summary

In final parenting proceedings before Foster J, the court considered the complex relationship dynamics between a child, the mother, and the father. The child had a fractured relationship with the father, while the mother exhibited an enmeshed relationship with the child and demonstrated limited reflective capacity regarding the child's relationship with the father. The father sought orders for the child to live with him.

The central legal issue before the court was to determine the best interests of the child, particularly in light of the fractured paternal relationship and the mother's enmeshment, and to make appropriate parenting orders. This involved considering the evidence presented, including the strong support from a Single Expert for the child's relocation to live with the father, and assessing whether a period of separation from the mother was necessary for the child's well-being.

The court reasoned that an appropriate outcome, supported by the Single Expert, involved the child living with the father. It was considered necessary to implement a hiatus in the child's time with the mother to facilitate this transition and address the existing relationship dynamics. Consequently, the court discharged all previous parenting orders and made new orders for the child to live with the father, granting him sole parental responsibility for major long-term issues. The orders also established a phased approach to supervised and unsupervised time between the child and the mother, commencing with a four-month period with no contact, and mandated therapeutic counselling for the child.

Orders

Orders of the court

That all previous parenting orders in relation to the child X born … 2009 (“the child”) be discharged.

That the child live with the father.

That the father be at liberty to choose to have the child reside at the home of the paternal aunt Ms B for such period as determined by him in consultation with the paternal aunt and the therapist appointed pursuant to these orders.

That the father have sole parental responsibility for major long term issues relating to the child.

That prior to the father making decisions relating to major long term issues as to the child including but not limited to his health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response provided such response is received within the stated period and notify the mother of his ultimate decision.

That the father as soon as practicable obtain a mental health referral for the child to attend upon Ms C (“the therapist”) for the purposes of therapeutic counselling and the child shall continue to attend on such therapist on such occasions as recommended by the therapist and for such period as recommended by the therapist.

That the mother and father shall cooperate with all reasonable requests made by the therapist for involvement by either or both of them in providing information to or in attending upon the therapist.

That leave is granted to the father to provide a copy of the Single Expert Report of Dr D dated 13 October 2017 and these Reasons for Judgment to the therapist.

That the child spend no time with the mother for a period of four (4) months from the date of these orders and thereafter the child spend time with the mother as follows:

(a) for a period of three (3) months each Sunday from 10am to 2pm under community-based supervision by a supervision service agreed between the parties in writing or in default of agreement nominated by the Independent Children’s Lawyer and that for the purposes of the mother’s supervised time as provided for above the father shall deliver the child to the supervisor at the commencement of the time the child is to spend with the mother and collect the child from the supervisor at the conclusion of the time the child spends with the mother;

(b) thereafter for a period of three (3) months each Sunday from 10am to 6pm;

(d) from the commencement of weekend overnight time from Saturday to Sunday as provided for in Order (9)(c) above the child shall if not otherwise spending time with the mother spend time with the mother:

(i) on the Mother’s Day weekend from 10am Saturday to 6pm Sunday;

(ii) each alternate year commencing in 2019 on New Year as follows:

A. if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

B. if the new year falls on a weekend from 10am on that day to the commencement of school the following day or 10am the following day if a non-school day

C. in each other year the mother’s time with the child shall be suspended on New Year:

(a) if the new year falls on a weekday then from the conclusion of school to the commencement of school the following day;

(b) if the new year falls on a weekend from 10am on that day to the commencement of school the following day or 10am the following day if a non-school day;

(iii) on the child’s birthday from 3pm to 8pm if the child is not otherwise spending time with the mother and provided that if the child is spending time with the mother such time shall be suspended from 3pm to 8pm;

(iv) on the mother’s birthday from the conclusion of school to 8pm if a school day or from 10am to 6pm if on a weekend provided always that the child’s time with the mother shall be suspended on the father’s birthday from the conclusion of school to 8pm if a school day or from 10am to 6pm if on a weekend;

(e) thereafter for a period of three (3) months each alternate weekend during school term from after school Friday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

(f) thereafter each alternate weekend during school term from after school Thursday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;

(g) from the commencement of weekend overnight time from Friday to Monday as provided for in (9)(e) above for one week in each mid-year term school holiday period commencing the first week from after school on the day term ends to 6pm on the mid-point Saturday in odd-numbered years and the second week commencing at 6pm on the mid-point Saturday to 5pm on the day before school resumes in even-numbered years from 2020;

(h) for two weeks in the Christmas school holiday period commencing in 2019/2020 school holidays as agreed between the parties and in default of agreement from 9am on the first Saturday in January to 6pm on the second Saturday thereafter; and

(i) at other times as agreed in writing, such writing to include SMS or email communication, between the parties.

10.

That as and from the expiration of a period of seven (7) months from the date of these orders the mother may attend events at the child’s school to which parents are normally invited including parent teacher interviews.

11.

That the mother be and is hereby restrained from attending within 100 m of the child’s school when the child is in attendance unless, for the purpose of attending an event pursuant to the previous order or at other times as agreed between the parties in writing such writing to include SMS or email communication.

12.

That the mother be at liberty to communicate with the child’s school and treating health practitioners and for such purposes the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.

13.

That the mother and father shall notify each other of any serious illness or injury suffered by the child when he is in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.

14.

That these Orders are authority for the school that the child attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the child’s education.

15.

That unless otherwise provided changeovers for the child to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.

16.

That the appointment of the Independent Children’s Lawyer be continued for a period of 12 months from the date of these orders and thereafter the Independent Children’s Lawyer be discharged.

17.

That any application for costs by the Independent Children’s Lawyer in respect to the proceedings to date be by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days with judgment thereafter reserved to chambers.

18.

That each party and the Independent Children’s Lawyer has liberty to relist as to enforcement or implementation of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.