Hamad & Hamad
[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, being the sum of $2,545 each, to Legal Aid NSW using the details below:
BSB: …
Account: …70
Quoting reference: "Hamad"
12.If a party seeks the waiver of part or all of their share of the costs award that is otherwise payable to Legal Aid NSW, or that payment be deferred for a period, the Legal Aid NSW waiver form shall be completed and submitted to Legal Aid NSW within 14 days of these orders.
IT IS NOTED THAT:
A.The issue of whether payment of a party’s share of the costs award is waived is solely a matter for Legal Aid NSW in terms of its rules and guidelines, and if waiver is refused the sum remains payable in terms of these orders subject to any rights of review or appeal.
B.It is the intention that the allocation of sole parental responsibility to the mother should be sufficient to authorise the removal of the applicant’s name from the child’s birth certificate.
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 the pseudonym Hamad & Hamad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These proceedings relate to the parenting arrangements for X, born in 2015 (“the child”) between the Applicant, Mr Hamad (“the applicant”) and Respondent Mother, Ms Hamad (“the mother”). The final hearing proceeded on an undefended basis, with the applicant failing to appear.
The proceedings were commenced by the applicant on 4 May 2020 in the Federal Circuit Court of Australia, now the Federal Circuit and Family Court (Division 2). They were transferred to this Court on 14 July 2021.
Under existing orders, the child lives with the mother and spends no time with the applicant. The mother has an interim order for sole parental responsibility in her favour. These orders were made by his Honour Judge Smith (as he then was) following an Application for Review on 13 July 2021. As a consequence of those orders, the time between the child and the applicant was suspended, although there was no dispute the child has not actually spent time with the applicant since March 2020.
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.
On 28 April 2022, Dr L published her Family Report. This was released to the parties on 5 May 2022.
The matter was first listed before me on 18 July 2022. On that occasion, I was informed by the solicitors for the applicant that they had not been able to obtain instructions. They filed the relevant notices in order to cease acting on 18 July 2022. The mother and ICL raised the possibility of the final hearing being set down on an undefended basis. I stood the matter over to 3 August 2022 in order for the applicant to be notified.
On the next court date, 3 August 2022, the applicant again did not appear. Accordingly, I set the matter down for an undefended final hearing on 31 August 2022 and made trial directions. Orders were also made for the applicant to be notified. Pursuant to these orders, the mother informed the applicant of the Court listings on 3 and 31 August 2022. Proof of this correspondence was tendered and became Exhibit A.
At the undefended hearing, the ICL informed the Court that the applicant had made contact with his firm on 16 August 2022 upon being notified of the undefended hearing. This email simply stated that “I can be available if you just let me know what I need to do.” The ICL’s firm responded to the applicant on 19 August 2022, informing him that the matter had been set down for undefended hearing and that trial directions had been made. This correspondence was also tendered and became Exhibit ICL 1.
Despite the above, there was no appearance by the applicant when the matter was called on 31 August 2022. I am satisfied that the mother and ICL have taken all necessary steps to inform the applicant of the listing for undefended hearing, that the applicant was aware of the listing, and it was appropriate to proceed with the hearing.
The ICL supported the orders sought by the mother. Clearly, the applicant did not appear either to propound any parenting orders or resist those proposed by the mother or the ICL.
CURRENT CIRCUMSTANCES
The mother and child presently reside together and are on the waiting list for social housing accommodation. She reports that the child is doing well at school. He was born with a kidney deficiency, however no ongoing issues are reported.
The mother has the regular assistance of Ms M, the applicant’s niece.
PROPOSALS AND ISSUES IN DISPUTE
In her Amended Response filed on 24 August 2022, the mother seeks the following:
(a)Sole parental responsibility for the child;
(b)For the child to live with the mother and spend no time with the applicant;
(c)Permission for the applicant to be removed from the child’s birth certificate and to change the child’s name to XY;
(d)Removal of the child from the Airport Watchlist;
(e)For her to retain the child’s passport; and
(f)Injunctions preventing the applicant from making any application for replacement passport for the child, making any application to obtain travel documents for Country F, and from attempting to obtain citizenship for the child in any country but Australia.
The ICL consented to orders for the mother to have sole parental responsibility, for the child to live with the mother, and for the applicant to spend no time with the child. He also consented to an order for injunctions to be made, as outlined in [23](f) above. The ICL did not oppose the other orders sought by the mother, submitting that they were simply a matter for the Court.
LEGISLATIVE FRAMEWORK
Although the proceedings were undefended, the statutory pathway must be followed. In parenting proceedings, the best interests of a child are the paramount consideration: s 60CA of the Act.
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe a parent or person living with a parent has engaged in abuse of the child or family violence: s 61DA(2). The presumption may be rebutted by “explicit and cogent” evidence which satisfies the Court that it would not be in the best interests of the child for his parents to have such equal shared parental responsibility: s 61DA(4); Dundas & Blake [2013] FamCAFC 133 at [57] and [61]. If the presumption does not apply or is rebutted, the consequence is that the power to make parenting orders pursuant to s 65D is “at large”, subject to the best interests of the child being the paramount consideration: Cox & Pedrana (2013) FLC 93-537 at [19].
Here, it is necessary to return to the fact that the applicant is not the child’s biological father. The fundamental term “parent” is not defined in the Act. The High Court has made clear that the word “parent”, when used in the Act, refers to a parent within the ordinary meaning of that word, unless an applicable provision of the Act otherwise provides: Masson v Parsons (2019) 266 CLR 554 (“Masson”) at [27]. The Court also noted the observation of Baroness Hale of Richmond in In re G (Children) [2006] 1 WLR 2305 at [33]–[37] that, according to English contemporary conceptions of parenthood, a person may be or become a natural parent of a child, depending on the circumstances of the particular case, genetically, gestationally, and psychologically. The Court commented this may also be true in Australia, though declined to express a concluded view, but emphasised the meaning of “parent” is a matter of fact and degree: at [29].
Of the three categories identified by her Ladyship, the first two can have no application to the applicant. The evidence in these proceedings disclosed a common position that, at least early in the child’s life, the applicant was “psychologically” the child’s father. There was a degree of attachment and the applicant and the child spent time together in a manner consistent with an ordinary child and parent relationship.
However, the child has not seen the applicant since March 2020. In her report dated 28 April 2022, Dr L recorded at [84]–[88]:
84. [X] presented as a pleasant child who was polite and emotionally regulated throughout the interview. [X] indicated that his family consisted of his mother, [Ms M] and cousins. When asked if he had left anyone out of his family tree, he commented, ‘no I have not’. We discussed that there are all kinds of families and he appeared to understand the conversation. He commented that ‘I live with just my mother and my Aunt lives in a house near us with her children. There are no father’s’. When asked about there not being any father’s, [X] commented, ‘I don’t have a father. We don’t know where he is’. When asked if he had someone who might be like a father to him, he commented, ‘no, I have my mother and my Aunt and that is fine’.
85. It seemed [X] either did not consider [Mr Hamad] to be his father or part of his family, he didn’t remember him, or he did not wish to include him in our discussion for whatever reason. A potential reason also could have included being asked not to by his mother or at least being influenced in this direction. I asked [X] if he can remember his mother being married. He commented, ‘not really no. I don’t really remember that’.
86…
87. I indicated to [X] that his mother had been married and asked if remember his father. [X] seemed taken aback by this direct question. He paused and seemed puzzled as to how to respond. He nodded indicating he did remember, ‘I remember a little bit. But he is not my father. I haven’t seen him for a long, long time and I don’t really remember’. When asked if he could remember what he looked like or the things they may have done together when he was very little, he commented, ‘no not really, I was little and I don’t remember’.
88. Developmentally, [X] was approximately 3 years of age when he last spent time with [Mr Hamad]. At this stage, young children are considered to be particularly vulnerable to separation from a parent as they do not have a realistic sense of time and they are unable to exist in an emotional vacuum. At this time dependency is maximal and yet the capacity to mourn when feelings are stirred up over separation is minimal. Younger children have low ability to tolerate anxiety without having to repress it and further, can rarely conceptualise and articulate their feelings in order to allow concerned adults to provide them the emotional support they may need. In this context, with an attachment lens, it may well be that [X] does not hold a coherent memory of [Mr Hamad] and further, will have repressed uncomfortable feelings, including fear, from his current working memory.
Dr L continued at [93]:
Arguably, the child’s primary attachment is with [Ms Hamad]. [X] may have spent regular time with [Mr Hamad] during his early years of life however, post separation, it appears he has had a structural history of being disconnected from spending any time with [Mr Hamad]. This has most likely resulted in a substantive rupture to the relationship between [Mr Hamad] and [X].
There was no reason to conclude that this evidence did not demonstrate the child’s genuine state of mind. The evidence was persuasive that in the child’s mind now, the applicant is not “psychologically” his father.
These observations and conclusions support the view that, accepting the applicant fell within the ordinary understanding of a “parent” in the early years of the child’s life, by the time the final hearing took place, he no longer did. I am not satisfied the applicant now is a parent of the child for the purposes of Part VII of the Act.
As pointed out in Masson at [27]:
So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or are otherwise defined in the Family Law Act as parents. And it does not mean that the only persons who may seek parenting orders under s 61D are parents according to ordinary acceptation or are otherwise defined as parents. The range of permissible applicants is broader than that. But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word "parent" refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.
Nonetheless, a conclusion that the applicant is not a “parent” has some important consequences for the application of the provisions of the Act. The presumption of equal shared parental responsibility operates in respect of the child’s parents. Accordingly, it does not apply in respect of the applicant.
However, if my conclusion that the applicant is not a parent is wrong, I separately find there are reasonable grounds to believe the applicant engaged in abuse of the child or family violence, for the reasons given below at [40]–[50]. Consequently, the presumption in s 61DA does not apply.
The best interests of a child are to be determined by an examination of the considerations set out in s 60CC(2) and s 60CC(3) of the Act. Section 60CC(1) provides that the Court “must consider” those matters, but express discussion is not necessary: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb & Sheean (2018) 58 Fam LR 351 at [84].
I have considered all the statutory factors. I will discuss only those that are relevant on the evidence of the mother, her proposal, and the submissions of the ICL, and to the extent they are relevant.
Again, my conclusion that the applicant is not a “parent” means a number of the statutory consideration in s 60CC do not apply in relation to the applicant. However, in case I wrong about the applicant’s status as a “parent” I have considered each of the statutory factors as well, on the basis that the applicant should be taken to be a parent of the child.
I am also satisfied in this matter the presumption is rebutted in the best interests of the child, for the reasons given below. In summary, there is evidence that the applicant poses an unacceptable risk to the child and that the child does not consider the applicant to be part of his family. It is in the best interests of the child that the mother alone have the responsibility to make decisions concerning major long terms issues relating to the child.
Section 60CC(2)(b) provides that the need to protect the child from abuse, neglect, and family violence is a primary consideration. A discussion of the evidence supports a conclusion of unacceptable risk from the applicant.
The mother gave evidence that throughout their relationship, the applicant exercised coercive control. The applicant appeared to have limited regard for the mother and child’s identity as Muslims, and routinely denigrated the faith. Although converting to Islam and partaking in an Islamic marriage ceremony with the mother in 2007, she gave evidence that the applicant mocked the faith, including her wearing of a hijab.
In early 2012, the mother contacted the police following an incident of family violence with the applicant. She alleges that that the applicant burnt photos of her family, rubbed the Quran against his private parts and burnt it, then attempted to hit the mother. The applicant also told the mother that “you will be like a slave and I am going to get a man to fuck you in front of my eyes.” A provisional ADVO was taken out for her protection.
The mother subsequently resided with a friend, however subsequently sought for the ADVO to be revoked and returned to the family home.
The mother deposed to an incident in 2014, where the applicant forced her to consume alcohol and to have intercourse with the applicant and an unknown male. She was not aware of what had occurred until informed by the applicant the following morning. The applicant stated that he had enjoyed the experience and the parties would “be doing it more and more.” The mother subsequently left the property and resided with a friend.
Shortly after in 2014, the mother discovered that she had fallen pregnant from this incident. She informed the applicant, who subsequently informed their family and friends that the child was conceived via IVF as it was common knowledge that the applicant was sterile. The mother returned to reside with the applicant when she was approximately five months pregnant.
In early 2018, the parties relocated to Country F to be closer to the mother’s support systems. However, the mother deposed to further incidents of family violence following relocation. This included physical violence which caused neighbours to interfere, and being locked outside the house. She was also restrained from seeing her family. The mother eventually managed to escape and returned to Sydney in mid-2018 with the assistance of the applicant’s brother.
The mother was informed by the maternal grandmother in mid-2018 that the maternal grandfather had been assaulted by some unknown men. It was suggested that the applicant was responsible for this, however he denied the allegations.
The applicant returned to Australia several months later and spent time with the child for several hours each weekend for four to five months. The mother alleges that the applicant was manipulating the child, as the child became defiant towards her and exhibited poor behaviour. She ceased the child’s time with the applicant in March 2020.
Following the interim hearing in July 2021, the applicant made threats to kill the mother and her family, and to abduct the child. The mother contacted the police and subsequently obtained a final ADVO. This remains in place until 2024.
In the absence of any evidence to the contrary, I find that the applicant poses an unacceptable risk to the child.
A discussion of the additional considerations under s 60CC(3) also supports the Court making the final orders as proposed by the mother.
The child is presently aged seven. The mother submitted that his views carry little weight in light of his age. I accept this to be the case, although I note that the child commented to Dr L that “I don’t have a father” and does not consider the applicant to be part of his family.
The evidence indicates that the mother has been the child’s primary carer, and sole carer since March 2020. There has been no contact between the applicant and child for 2.5 years. I refer to the evidence from Dr L’s report, above at [30] and [31]. I am satisfied that the applicant has almost no relationship with the child. The mother and child maintain a robust relationship.
Ms M, the applicant’s niece, also provides regular support to the mother and child. It appears that the two have a strong relationship, together with Ms M’s two sons, who are aged 7 and 9. She gave evidence that the child considers her sons to be his brothers, and they are engaged in a variety of extra-curricular activities together.
The mother submitted that if the Court were to make orders which effected a change in the child’s circumstances, such that he would begin to spend time with the applicant, this would be severely disruptive. It was argued the child’s wellbeing and behaviour would deteriorate, and it would also cause significant anxiety for the mother, which would consequentially impact the child. The evidence supports such a conclusion. Pursuant to court orders, the child and applicant spent time together from late 2018 to early 2019. The mother gave evidence that this contact resulted in swearing and general misbehaviour towards the mother.
I am also satisfied that the mother has the capacity to provide for the child’s needs, both physically and emotionally, having regard to the child’s Muslim faith. She has demonstrated that she is a committed and dedicated mother.
In light of the history of family violence, the absence of the applicant both from the child’s life and his failure to engage with these proceedings at final hearing, it is preferable to make orders that would be least likely to lead to the institution of further proceedings. I am satisfied that the proposed orders will do so.
I note that the mother seeks an order permitting a change to the child’s name from “X Hamad” to “X Kazmi”. The ICL did not oppose this. In the circumstances, and in light of the proposed order for sole parental responsibility in favour of the mother, I am satisfied such an order is appropriate, reflecting a decision on the child’s name made by the mother.
The mother also seeks for the applicant to be removed from the child’s birth certificate. Such orders are beyond the jurisdiction of this Court. However, a notation will be included to support the mother making an application to the relevant authorities.
Finally, the mother seeks injunctions restraining the applicant from applying for any passport for the child, travel documents for Country F, or any citizenship for the child other than Australia. The evidence showed the applicant has strong links to Country F. There was evidence of threats made by the applicant, including statements that he would “make [her] life hell if you don’t let me see him.” In mid-2021, the applicant told the mother that “I will kill you and take [X] with me,” following which she obtained an ADVO. In light of these matters, I am satisfied that such injunctions are appropriate.
The ICL sought that his costs be paid equally by both parties. The mother did not oppose such an order. An order will be made to this effect.
For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 2 September 2022
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