FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hadad & Issa [2024] FedCFamC2F 1347
File number(s): PAC 5858 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 30 September 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children. Legislation: Australian Passports Act 2005 (Cth) s 11(1)(b)(i)
Family Law Act 1975 (Cth) ss 60CA, 60CC
Cases cited: Banks & Banks (2015) FLC 93-637 at [49]
Jollie & Dysart [2014] FamCAFC 149 at [49]
Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]
Division: Division 2 Family Law Number of paragraphs: 76 Date of hearing: 10 – 12 September 2024 Place: Parramatta Counsel for the Applicant: Ms Coulton Solicitor for the Applicant: JE Justice Legal Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms Reid Solicitor for the Independent Children's Lawyer: Ark Law ORDERS
PAC 5858 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HADAD
Applicant
AND: MS ISSA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 SEPTEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Mother shall have sole decision-making responsibility about major long-term issues for the children, Y born in 2015 and Z born in 2021.
2.The Father shall have sole decision-making responsibility about major long-term issues for the child, X born in 2012.
3.For the purpose of Order 1 and except in the event of an emergency, before making any major long-term decision in relation to Z and Y, the mother will notify the father as follows:
(a)Advise the father in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the mother;
(b)Provide the father with all relevant information which is in the possession of mother relating to the long-term issue;
(c)Provide any necessary authorities to enable the father to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the father before making a decision; and
(e)Inform the father of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
4.For the purpose of Order 2 and except in the event of an emergency, before making any major long-term decision in relation to X, the father will notify the mother as follows:
(a)Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the father;
(b)Provide the mother with all relevant information which is in the possession of father relating to the long-term issue;
(c)Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the mother before making a decision;
(e)Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
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- Hadad & Issa [2024] FedCFamC2F 1347
- Case
- [2024] FedCFamC2F 1347
- Decision Date
CaseChat Overview and Summary
The court meticulously assessed the evidence and submissions presented by both parties. It concluded that sole decision-making responsibility for major long-term issues should be assigned based on the individual circumstances of each child. For the two youngest children, Y and Z, the mother was deemed best suited to handle these decisions, while the father was found to be more appropriate for the eldest child, X. The court mandated specific notification and consultation processes to ensure collaborative decision-making and to maintain the father's involvement despite not having sole decision-making authority. The parenting schedule was designed to provide each child with substantial and consistent time with both parents, adjusted to accommodate their schooling and other commitments.
The final orders specified detailed arrangements for living situations, visitation schedules, and communication protocols between parents and between parents and children. The court also addressed logistical aspects such as changeover locations, family therapy requirements, and international travel stipulations to ensure the children's safety and welfare. The orders included provisions for passport applications and enrollment in educational institutions, reflecting the parents' shared responsibility in the children's upbringing.
In conclusion, the court ordered that the mother would have sole decision-making responsibility for Y and Z, while the father would have the same for X. The children's living arrangements and visitation schedules were tailored to balance their needs and foster their relationships with both parents. The detailed orders reflect a comprehensive approach to parenting coordination, aiming to promote the best interests and well-being of the children.
Orders
Orders of the court
PAC 5858 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HADAD
Applicant
AND:
MS ISSA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 SEPTEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The Mother shall have sole decision-making responsibility about major long-term issues for the children, Y born in 2015 and Z born in 2021.
2. The Father shall have sole decision-making responsibility about major long-term issues for the child, X born in 2012.
3. For the purpose of Order 1 and except in the event of an emergency, before making any major long-term decision in relation to Z and Y, the mother will notify the father as follows:
(a) Advise the father in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the mother;
(b) Provide the father with all relevant information which is in the possession of mother relating to the long-term issue;
(c) Provide any necessary authorities to enable the father to obtain any additional information from any relevant health or education institution;
(d) Give consideration to any response from the father before making a decision; and
(e) Inform the father of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
4. For the purpose of Order 2 and except in the event of an emergency, before making any major long-term decision in relation to X, the father will notify the mother as follows:
(a) Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the father;
(b) Provide the mother with all relevant information which is in the possession of father relating to the long-term issue;
(c) Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or education institution;
(d) Give consideration to any response from the mother before making a decision;
(e) Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
Live with
5. The children Z and Y shall live with the mother.
6. The child X shall live with the father.
Time with
7. Y shall spend time with Father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a non-school day.
8. From the date of these Orders and for the next six (6) months, Z will spend time with the Father from 9.00 am on Saturday to 6.00 pm on Sunday each alternate weekend with the time to coincide with Y’s time with the Father.
9. Following the completion of Order 8 and for the next six (6) months, Z will spend time with the Father from 3.00 pm on Friday to 6.00 pm on Sunday each alternate weekend with the time to coincide with Y’s time with the Father.
10. Following the completion of Order 9 and thereafter, Z will spend time with the Father from 3.00 pm on Friday to the commencement of school on Monday (or Tuesday if Monday is a non-school day) each alternate weekend with such time to coincide with Y’s time with the Father.
11. Y and Z will spend time with the Father each alternate Thursday (week 2) from 5:00 pm to 7:00 pm. In relation to this time, the Father shall collect Z from her daycare and collect Y from the mother’s residence, and he shall return these children to the mother’s residence at the conclusion of his time pursuant to this Order.
12. From 19 October 2024 and for the next six (6) weeks, X will spend time with the Mother from 9.00 am to 6:00pm on each alternate Saturday.
13. Following the completion of Order 12 and for the next six (6) weeks, X will spend time with the Mother from 9:00am Saturday until 6:00pm on Sunday each alternate weekend.
14. Following the completion of Order 13 and for the next six (6) weeks, X will spend time with the Mother from the conclusion of school on Friday to 6.00 pm on Sunday.
15. Following the completion of Order 14 and thereafter, X will spend time with the Mother from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a non-school day.
16. For the purpose of Orders 12 to 15, X’s time is to occur with the time Z and Y are with the Mother.
17. At any other time as agreed between the parties in writing.
Time Spent School Holidays
18. Notwithstanding Orders in relation to school term time, X and Y spend time with each of their parents equally during the short school holidays as follows:
(a) With the mother for the first half of each of the short school holidays at the conclusion of terms 1, 2, and 3 in odd numbered years and the second half of each of the short school holidays in even numbered years; and
(b) With the father for the first half of each of the short school holidays at the conclusion of term is 1, 2, and 3 in even-numbered years, and the second half of each of the short school holidays in odd-numbered years.
(c) The above school holiday time for X is not to commence until March 2025.
19. Notwithstanding Orders in relation to school term time, X and Y spend time with each of their parents equally during the long school holidays following term 4 as follows:
(a) With the mother:
(i) in odd-numbered years, for the first half of each long school holiday; and
(ii) in even-numbered years, for the second half of each long school holiday.
(b) With the father:
(i) in even-numbered years, for the first half of each long school holiday; and
(ii) in odd-numbered years, for the second half of each long school holiday.
(c) That the above school holiday time for X is not to commence until March 2025.
20. Notwithstanding Orders in relation to school term time, Z spend time with the Father in the school holidays pursuant to Orders 8 – 10 with such time to be extended to Monday to 6.00 pm from the date of the Orders and for a period of 6 months.
21. From the conclusion of Order 20 until Z commences primary school, such time will be extended to 9.00 am on Tuesday when the Father is to drop off Z at the childcare centre she is enrolled in.
22. From when Z commences primary school, Z spend time with the Father in accordance with Orders 18 and 19.
Holiday Midpoint
23. The mid-point of school holidays will be determined as follows:
(a) The half-way point of each school holidays will be calculated by dividing the number of nights in each school holidays by two;
(b) The first half will commence at the conclusion of school on the children’s last day of school of each school holidays and conclude at 12.00 pm on the date that is the half-way point of each school holidays;
(c) The last half will commence at 12.00 pm on the date that is the half-way point of each school holidays and conclude on the morning the children return to school following the school holidays; and
(d) In the event there is an uneven number of nights during any of the school holidays, the children will spend one extra night with the Mother in odd‑numbered years and with the Father in even-numbered years.
Special Occasions
24. The children will spend time with the Father and the Mother’s time will be suspended between 10.00 am and 5.00 pm on Father’s Day each year and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
25. The Father’s time with the children is suspended and the children spend time with the Mother between 10.00 am and 5.00 pm on Mother’s Day each year and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
26. Notwithstanding any Order in relation to school term time or school holidays, the children will spend time with each of their parents during religious holidays (collectively referred to as “Religious Holidays”) as announced by the Country B Association as follows:
(a) In odd-numbered years:
(i) With the Mother from the conclusion of school (or 3.00 pm on a non‑school day) the day before the religious holidays until the commencement of school (or 9.00 am on a non-school day) the day after the first day of the religious holidays (“second day”); and
(ii) With the Father for the second day of each of the religious holidays, from the commencement of school (or 9.00 am on a non-school day) until the conclusion of school (or 3.00 pm on a non-school day) the following day.
(b) In even-numbered years:
(i) With the Father from the conclusion of school (or 3.00 pm on a non‑school day) the day before the religious holidays until the commencement of school (or 9.00 am on a non-school day) the day after the first day of the religious holidays (“second day”); and
(ii) With the Mother for the second day of each of the religious holidays, from the commencement of school (or 9.00 am on a non-school day) until the conclusion of school (or 3.00 pm on a non-school day) the following day.
27. For the child/ren’s birthday each year:
(a) If a school day from after school / 3.00 pm until 6.00 pm all of the children will spend time with the parent they are not ordinarily spending time with on the child’s birthday;
(b) If a non-school day from 9:00 am until 12:00 pm all of the children will spend time with the parent they are not ordinarily spending time with on the child’s birthday.
28. For the parent’s birthday each year:
(a) If a school day from after school / 3.00 pm until 6.00 pm if the children are not ordinarily spending time with the parent on the parents' birthday;
(b) If a non-school day from 9.00 am until 12.00 pm if the children are not ordinarily spending time with the parent on the parents’ birthday.
Changeovers
29. Subject to Order 11, unless otherwise agreed in writing, changeover that does not occur at school or day-care, is to take place at McDonalds at Suburb C.
Family Therapy
30. The parties shall engage forthwith in non-reportable family therapy with an agreed family therapist and any joint sessions are to occur in accordance with the written recommendations of the family therapist.
(a) For the purposes of facilitating Order 30:
(i) The Father is to nominate three family therapists and provide these to the Mother via email to her nominated email address, and the mother shall respond within seven (7) days confirming which therapist she has selected;
(ii) In the event that the Therapist provides a subsidised fee, then within fourteen (14) days of the father nominating a family therapist in accordance with Order 30(a)(i)., the parties are to attend their general practitioner and obtain a referral under a mental health care plan to engage in therapy prior to their respective intake sessions;
(iii) Within fourteen (14) days thereafter, the parties are to make their initial intake appointment to allow the therapist to assess the suitability of ongoing therapy;
(iv) The father is to facilitate X attending the initial intake appointment as arranged with the therapist;
(v) The parties are to follow all written recommendations as given by the therapist;
(vi) The father is to ensure X’s attendance at all appointments in accordance with the recommendations of the therapist;
(vii) The parties are equally liable for any and all fees associated with attending family therapy as charged by the therapist.
Communication between parents
31. In the event of an emergency or an issue arising which requires the immediate attention of the other parent, the parents will communicate by telephone call and/or text message as soon as practicable and within 2 hours.
32. For the purposes of non-urgent communications, the parents will communicate by text messages and/or email.
33. Within 48 hours of the making of these Orders, the parents shall keep the other informed and notify as soon as practicable about all the children’s upcoming and future medical, birthday party commitments, school and non-school extracurricular activities, and appointments.
34. Within 48 hours of the making of these Orders, both parents will keep each other informed with their email address, current residential address and contact telephone number where they can be reached at all times in relation to the children and matters affecting their welfare.
35. Both parents will notify the other parent of any change to those details as soon as practicable after such change, and in any event no later than after 48 hours of the change.
36. The parents advise each other by telephone or text message as soon as practicable upon becoming aware of any of the following in relation to the children:
(a) Any illness or injury requiring a medical examination or medical consultation;
(b) Any illness requiring the provision to the children of any medicine prescribed by a medical practitioner;
(c) Any hospital attendance for examination, consultation or treatment;
(d) Any proposed dental treatment;
(e) Any proposed appointment with any other health professional, including all details as to the health or educational professional and the time of the attendance or appointment;
(f) Any issue of concern raised with either parent by the children’s school relating to their education, welfare or behaviour;
(g) Any issue relevant to the children’s spiritual or religious upbringing.
37. If the children need medical care while with one parent, that parent will promptly notify the other parent, and include the following details:
(a) The name and contact details of the medical professional administering the treatment;
(b) The medical condition for which the children, or any of them, were taken to the medical professional;
(c) Any treatment and/or medication prescribed for or provided to the children, or any of them, and the reasons for same;
(d) The prognosis of the children’s condition such as it is known;
(e) The prescribing or provision of such medication and/or treatment; and
(f) If the children, or any of them, is admitted to hospital: the name and contact details of that hospital.
38. Each parent is entitled to receive all information:
(a) From any medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, or hospital which treats the children, or any of them, including records and notes; and
(b) From any school at which the children attends, or any of them, including copies of the children's school reports, school photos, and any other document ordinarily provided to parents, and this Order serves as authority for that medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, hospital, or that school to provide that information to either parent requesting such information.
39. In the event that the medical practitioner, allied health care practitioner, hospital or the school forms the view that this Order is insufficient authority to provide the information then each parent will do all things and sign any authority required by the medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, hospital, or the school to provide the information.
40. Each parent is entitled to attend all school events and extracurricular activities at which parents would normally be present, including sports days, nights, functions, meetings or parent-teacher interviews, noting that each parent may request separate interviews from the school should the school facilitate same.
Communication between children and parent
41. Each parent is to facilitate telephone communication between the children and the non‑caring parent with whom the child/ren are not currently spending time with, at reasonable times at their requests.
42. The mother will facilitate Y and Z to have telephone communication with the father each Tuesday at 6.00 pm for a period of no more than 30 minutes, with the father initiating the communication.
43. The father will facilitate X to have telephone communication with the mother each Wednesday at 7.00 pm for a period of no more than 30 minutes, with the mother initiating the communication.
44. Nothing in these Orders prevents the caring parent from enabling the children to communicate with the non-caring parent at all reasonable times.
45. The parents will respect the children's privacy during these communications.
Non-Denigration and Restraints
46. Without admissions, each parent be restrained by injunction from:
(a) Using physical discipline on the children, or otherwise striking, hitting or punching the child or permitting any other person to do so;
(b) Discussing these proceedings, or showing any document related to these proceedings, to the child/children;
(c) Denigrating the other party, or members of the other party’s family to the child/children or in the hearing or presence of the child/children or permitting any other person to do so;
(d) Relocating the children/child who are living with them a distance of more than 40km from the other parent’s residence;
(e) Changing the names of the children/child unless agreed in writing;
47. For a period of 6 months from the making of these Orders, without admissions, the mother is restrained by injunction from leaving X in the sole care of the Maternal Aunt (Ms D) and Uncle (Mr E).
Passport
48. For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the children, Y born in 2015 and Z born in 2021 are permitted to have an Australian passport and the mother is permitted to apply for, or renew, the children’s Australian passport and the father’s consent to the children having an Australian passport is dispensed with.
49. The mother is to hold Y and Z’s Australian passports.
50. For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child, X born in 2012 is permitted to have an Australian passport and the father is permitted to apply for, or renew, the children’s Australian passport and the mother’s consent to the children having an Australian passport is dispensed with.
51. The father is to hold X’s Australian passport.
52. If either parent plans a holiday with any or all of the three (3) children outside of the Commonwealth of Australia, the travelling parent will seek signed written consent from the non-travelling parent and such consent shall not be unreasonably withheld provided the following are complied with:
(a) Give the other parent 60 days' notice in writing of the intended travel arrangements;
(b) Give the other parents at least 21 days prior to any international travel; the parent travelling with the children must:
(i) Provide a copy of return flight tickets and an itinerary of the travel, including:
A. The time and date of departure from and return to Australia;
B. The name of any flight carrier, flight times, and other transport details;
C. Details of accommodation, including address and contact details (telephone number and/or email address);
D. Details on how to contact the children during the holiday.
(c) At least 72 hours prior to overseas travel, subscribe to Smart Traveler or a similar authority of the Australian Government to receive updates on the travel destinations and provide confirmation and details to the other parent.
(d) Ensure the children are covered by a valid travel insurance policy for the duration of the travel, including SARS-CoV-2/COVID-19 cover, and provide a copy of such policy to the other parent not less than 14 days prior to the intended travel.
(e) The travelling parent is restrained from seeking to travel with the children to any country not listed in the itinerary.
53. Unless agreed otherwise, any international travel and domestic travel is to occur during the respective parent’s time with the children.
Ancillary
54. Any individual counselling the children attend is not to be reportable.
55. Within seven (7) days from the date of these Orders, the parents do all acts and things to enrol X in F School in Suburb G to enable him to commence school in October 2024.
56. Both parents are required to include the other parent's details, including their full name, contact number, and status as an emergency contact, in all enrolment forms, medical records, school records, and any other relevant documents or registrations pertaining to the child/children.
57. Each parent must notify the other in writing within seven (7) days of any such enrolment or update, providing a copy of the completed form or registration that includes the other parent’s details.
58. Both parents shall list the other parent as an emergency contact on all forms and documents where emergency contacts are required, ensuring that both parents are promptly notified in the event of an emergency.
59. Each parent must provide written confirmation to the other within fourteen (14) days of the making of these Orders that they have complied with the inclusion of the other parent's details as specified herein.
60. Any changes to the children’s enrolment details or emergency contact information must be communicated to the other parent in writing within seven (7) days of such changes.
61. Both parties shall ensure that the children are provided with correct school uniform at all times.
AND THE COURT NOTES THAT:
A. The father shall bear the full costs of X’s education at F School.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
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