Hamad & Hamad

Case [2022] FedCFamC1F 664

Federal Circuit and Family Court of Australia

(DIVISION 1)

Hamad & Hamad [2022] FedCFamC1F 664

File number(s): SYC 2708 of 2020
Judgment of: HARPER J
Date of judgment: 2 September 2022
Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where applicant is not the child’s birth father – Where applicant has not spent time with the child for 2.5 years – Applicant is not a “parent” for the purposes of Part VII of the Family Law Act 1975 (Cth) – History of family violence perpetrated by applicant – Orders made for mother to have sole parental responsibility and no time with the applicant.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA
Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48

Dundas & Blake [2013] FamCAFC 133

In re G (Children) [2006] 1 WLR 2305; [2006] UKHL 43

Jollie & Dysart [2014] FamCAFC 149

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Division: Division 1 First Instance
Number of paragraphs: 63
Date of hearing: 31 August 2022
Place: Sydney
The Applicant: No appearance
Counsel for the Respondent: Mr Chhabra
Solicitor for the Respondent: Kalpaxis Legal
Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers

ORDERS

SYC 2708 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR HAMAD

Applicant
AND:

MS HAMAD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARPER J

DATE OF ORDER:

2 September 2022

THE COURT ORDERS THAT:

1.The Respondent Mother, Ms Hamad (“the mother”) have sole parental responsibility for X, born in 2015 (“the child”).

2.The child live with the mother.

3.The Applicant, Mr Hamad spend no time with the child.

4.The mother be authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales that the child registered as X Hamad, born in 2015, now be registered as X Kazmi.

5.Pursuant to s 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child’s name in the form specified in Order 4 of these orders.

6.The mother shall serve a sealed copy of these orders upon the Registrar of Births, Deaths and Marriages for the State of New South Wales.

7.The child be removed from the Airport Watchlist.

8.The mother retain the child’s passport at all times.

9.The applicant be restrained by injunction from:

(a)making any application for a replacement passport for the child to any Passport Office;

(b)making any application for obtaining any travel documents for the child with the Consulate General of Country F – Sydney or any other Country F Consulate or embassy; and

(c)attempting to obtain a Country F citizenship for the child or any other country other than Australia.

10.The applicant’s Initiating Application for parenting orders be otherwise dismissed.

11.Within 60 days, each party shall each pay half of the costs of the Independent Children’s Lawyer,…

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Hamad & Hamad [2022] FedCFamC1F 664
Case
[2022] FedCFamC1F 664
Decision Date

CaseChat Overview and Summary

The proceedings in Hamad & Hamad were heard in the Family Court of Australia by Judge Smith. The applicant, who is not the biological father of the child born in 2015, sought equal shared parental responsibility and for the child to live with both parties on a week-about basis. The mother, who was born in Country G and migrated to Country F in 1982, opposed the application and sought sole parental responsibility, for the child to live with her, and no orders in respect of time with the applicant. The mother also sought to remove the applicant from the child’s birth certificate and to change the child’s name.

The legal issues before the court included the determination of the child’s paternity, the allocation of parental responsibility, and the arrangement of time-sharing between the parties. The court was required to consider the best interests of the child in making these determinations. The applicant’s lack of biological connection to the child was a significant factor, as was the mother’s request to remove the applicant from the birth certificate and change the child’s name. The court also had to consider the circumstances of the child’s conception, which were not fully disclosed but were relevant to the issues of paternity and responsibility.

Judge Smith, after reviewing the evidence and considering the best interests of the child, determined that the applicant was not the biological father of the child. Consequently, the court ordered that the mother have sole parental responsibility and that there be no time with the applicant. The court also placed the child on the Airport Watchlist and continued the restraint on the mother from leaving the child in the sole care of Mr C, the applicant’s nephew. The proceedings were transferred to the Family Court of Australia, and a Family Report was ordered.

The final orders included the mother having sole parental responsibility, no time with the applicant, the child being placed on the Airport Watchlist, and the continued restraint on the mother regarding the care of the child by Mr C. The court also made orders for a Family Report to assist in further decision-making.

Orders

Orders of the court

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Background

Background to the litigation

As explained below, the proceedings were heard undefended by the applicant. BACKGROUND AND PROCEDURAL HISTORY The mother was born in 1982 in Country G and migrated to Country F that same year. The parties met in Country F in 2007. The applicant is originally from Australia. The child was born in 2015. The parties separated in around mid-2018, with the applicant commencing proceedings on 4 May 2020 seeking equal shared parental responsibility and for the child to live with both parties on a week about basis. It is important to note that the applicant is not the child’s biological father. The circumstances surrounding the child’s conception will be discussed further below. The mother filed her Response on 20 July 2020, seeking sole parental responsibility, for the child to live with the mother, and no orders in respect of time with the applicant. She also sought permission for the applicant to be removed from the child’s birth certificate and for the child’s name to be changed. During the first listing before a judicial registrar on 22 July 2020, the Court was informed that the paternity of the child was in question. It was common ground that the matter could not progress until this was established. Orders were subsequently made by consent on 13 August 2020 for parentage testing to be undertaken. On 16 December 2020, a senior judicial registrar ordered for the parties to attend a Child Dispute Conference. The parties attended on 2 February 2021 and a memorandum was released on 9 February 2021. The matter was then listed for Interim Hearing before a judicial registrar on 1 April 2021. On that occasion, orders were made for the parties to have equal shared parental responsibility for the child, and for the child to live with the mother and spend supervised time with the applicant each Saturday, initially for four hours, later rising to six hours. An Independent Children’s Lawyer (“ICL”) was also appointed on that date, and restraints were placed on the mother from leaving the child in the sole care of Mr C, the applicant’s nephew and friend of the mother. On 28 April 2021, the mother filed an Application for Review of the judicial registrar’s decision. The application was amended on 2 and 6 July 2021. Ultimately, the mother sought sole parental responsibility and orders for no time with the applicant. In the event the Court was satisfied there should be time with the applicant, she sought that this be supervised and occur each alternate Saturday for two hours. The application was listed on 13 July 2021 for hearing before Judge Smith. His Honour discharged the orders made by the senior judicial registrar and instead ordered for the mother to have sole parental responsibility and for there to be no time with the applicant. The child was also placed on the Airport Watchlist, together with a continuation of the restraint on the mother from leaving the child in the sole care of Mr C. His Honour transferred the proceedings to the Family Court of Australia (as it then was) and made orders for a Family Report.

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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