Hamidi and Allaway and Anor

[2014] FamCA 625

FAMILY COURT OF AUSTRALIA

HAMIDI & ALLAWAY AND ANOR [2014] FamCA 625

FAMILY LAW – CHILDREN – Interim parenting – Whom the children should live with on an interim basis – Where the subject children have lived primarily with the father since separation – Where the youngest child is in the care of the Minister of the Department of Family and Community Services and placed with the father – Where there are Children’s Court proceedings in respect of the youngest child – Where factual matters are largely in dispute or unable to be determined on an interim basis – Where there appear to be risk factors in respect of the mother – Alleged family violence

Deiter & Deiter [2011] FamCAFC 82
George and George [2013] FamCAFC 182
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Hamidi

FIRST RESPONDENT: Ms Allaway

SECOND RESPONDENT: Department of Family & Community Services

FILE NUMBER: PAC 3361 of 2014

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ryan & C Lawyers

FIRST RESPONDENT: Self‑represented Litigant

SECOND RESPONDENT: No appearance

Orders

1. The mother is to make contact with her son to return the child B to the Court forthwith.

2. The child B is to be placed into the childcare section of the Court today.

3. A representative of the Department of Family and Community Services is to attend the Court at 2.15pm today.

LATER (AT 2.15PM) WITH APPEARANCES AS BEFORE, IT IS ORDERED PENDING FURTHER ORDER THAT

1. The children are to live with their father.

2. The children are to spend no time with their mother.

3. The father is restrained from allowing his partner (Ms C) to live in his home and she is to vacate the house by 8.00 pm this evening.

4. Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children [D born … 2001, B born … 2013 and E born … 2013] are to be independently represented by a lawyer in these proceedings.

5. The parties are restrained from taking any action to change the enrolment of the children in their current schools.

6. The mother is restrained from contacting or approaching the children.

7. The Independent Children’s Lawyer to provide a copy of this order to the children’s schools.

8. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

9. The matter is to be the subject of assessment for inclusion in the Magellan program and is to be returned to the Registrar’s list today for further directions by the Magellan Registrar.

10. The mother is to leave the precincts of the Court and, in particular, not to attend the Childcare section.

11. The father is to take the child, B from the Court.

ORDERS MADE IN CHAMBERS

1. The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the child’s interests.

2. The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

3. Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he/she considers relevant to the issues before the Court.

4. Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

5. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

6. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention.

7. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

8. Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamidi & Allaway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3361  of 2014

Mr Hamidi

Applicant

And

Ms Allaway

First Respondent

And

Department of Family & Community Services

Second Respondent

REASONS FOR JUDGMENT

1. Both parents have sought orders that they each should be restrained from moving the children from their current schools and also that an Independent Children’s Lawyer be appointed.

2. A number of other issues, such as matters relating to psychological assessment, the mother’s proposal of counselling for the children, ordering a Family Report and issues relating to parental responsibility, will be dealt with at a future time.

3. The issues for me to determine today are who the children, B and D should live with, what time they should spend with the other parent and any other issue relating to the children’s best interests that needs to be resolved on an urgent interim basis.

4. The father proposes that the children live with him and, he originally proposed that the time that they spend with their mother be subject to supervision of the Department of Community Services. However, because he recognised that the Court is not aware of the Department’s arrangements and capacity for supervision, as I understand, it he now proposes on this interim basis that the children spend no time with their mother.

5. The mother opposes the orders sought by the father, though she has not filed a Response. However, as I understand it, she proposes that the children live with her.  It is not clear what spend time with arrangement she is suggesting in relation to the father if that were to happen.

6. There is only one affidavit filed, that is, filed by the father, and so it is not entirely clear to me what is in dispute, though, as I understand it, there are a few undisputed facts which I will refer to now.

The undisputed facts

1. Firstly, it appears to be undisputed that the parties commenced their relationship in about 1995, that D, who is 13, was born in 2001, that B, who is 11, was born in 2003 and that E, who is 12 months old was born in 2013.

2. I also understand that it is not in dispute that the mother has two adult sons.

3. I also understand that it is not in dispute that in around 2009 the children were enrolled in schools in the Suburb F area, that B still attends at that school but D now goes to a high school not far from that area.

4. Also, I do not believe it is in dispute that the parties separated around about the time that E was born. At first they remained in the house together (separated under the one roof), and then the mother left and took E who was then an infant with her in December 2013.

5. It also appears to not be in dispute that there is no parenting plan or orders or any form of agreement in place.

6. I imagine that it is also not in dispute that the parties own a property in G Town where the mother is said to live with one of her adult sons. It is not clear where the father lives but he says that he works flexible hours which allow him to care for the children and he also says in his affidavit that he has a supportive family. A brother and sister-in-law live next door and they all share a good relationship with the children.

7. I also understand that it is not in dispute that since about the time of separation and around the time of E’s birth the father formed a new relationship with a new partner, who is 15 years his junior, and that the partner moved in with the family a couple of weeks after the mother moved out.

8. The father says that his partner assists in the care of the children and shares a positive relationship with the children, but that is a matter about which I do not know if there is a dispute and, as far as the details of the relationship are concerned, I have no information.

9. According to the father’s affidavit, and it seems to me that this is again not in dispute, the mother and the father’s partner do not share a good relationship and the children have been exposed to high levels of conflict and, the father says, abuse levelled at changeover and other occasions when the mother and sometimes the father and his new partner come into contact.

10. There is also, on the father’s version, allegations that the mother has physically and verbally abused him and his partner, including what he describes as attacks in the family home. It is not clear whether this is disputed but I am assuming that it is.

11. In May 2014 the father says that the Department of Family and Community Services intervened and took E into care. It does not appear to be a matter in dispute that she is currently under the parental responsibility of the Minister but placed with the father. Certainly it appears apparent from the material, which is undisputed, that is material put before the Court annexed to the father’s affidavit that comes from the Department, that the allegations relate to significant risk of harm factors in the mother’s home, including drug taking, neglect and possible mental health factors.

12. Currently, there are care proceedings before the Children’s Court in relation to E. Many matters are unknown but I note that the proposed plan for the child annexed to the father’s affidavit indicates that, in the view of the Department, restoration to the mother is a realistic possibility.

13. The care proceedings do not relate to the two older children who are the subject of this application for interim orders.

14. The father says that he has been the primary carer of both the older children since separation but describes his partner as providing a great deal of support and assistance. The father refers to the mother’s attempts since separation to, what he describes, abduct the two older children and on one occasion at least assisted by the mother’s adult son. I would anticipate these are matters which would be in dispute, but this is not known at this time. However, it appears that it is not in dispute that from about 13 July 2014 B had been living with her mother and, indeed, she was brought into Court today by her mother.

15. The father also alleges that the mother has attended his home in an effort to gain contact with E and the police have been required to attend. Also, the mother has attempted to take D from her school. Once again, I am not sure what the mother’s position is in relation to that, but it does appear to be beyond dispute between the parties that these children have been embroiled in a huge amount of conflict and disruption, certainly since the date of separation.

16. The reason that I have gone through and tried to articulate which are the matters that are not in dispute and which are the matters that are in dispute is because, as a general proposition, the Court proceeds to hear and determine interim matters on the undisputed facts, though it is clear from the authorities that the Court can also have regard to some of the matters in dispute. In that regard, I refer in particular to the decision of SS & AH[1] and also the matter of George & George[2] referring to the matter of Deiter & Deiter[3].

    [1] [2010] FamCAFC 13

    [2] [2013] FamCAFC 182

    [3] [2011] FamCAFC 82

17. In Dieter (supra) the Court was particularly concerned with the situation where the contested facts relate to an assessment of risk and where it was said at [61]:

    … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. …

    The Court went on to say:

    In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. …

    So in this regard, I have had to have some regard to those matters which, as I say, I anticipate will be disputed, but essentially the matter will be decided on the undisputed facts.

18. As far as the Court determining what is in the children’s best interests, I reiterate that I am considering the “live with” and “spend time with” orders today and any other specific order required in the best interests of the children. The primary considerations are the benefit of the children having a meaningful relationship with both the children’s parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

19. So far as the meaningful relationship with both parents is concerned, it is certainly the case that unless there are significant issues which indicate that the children would not have the benefit from having a meaningful relationship with both of their parents, that it is incumbent on the Court to draft orders that would promote that benefit. In this particular case, I have to consider that the father’s application is one of the children having no contact with their mother, which certainly is quite an extreme order in terms of the meaningful relationship consideration, but I also note that it is an interim application at this stage and it has not been suggested that that be a situation that will continue a long way into the future. The fact that we are dealing with something on an interim basis means that it is a matter of weeks that has to be considered.

20. In terms of protecting the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, the only matters I have before me are that there are risks of that kind in the mother’s home and that those risks to date have only presented themselves in relation to E. However, on the other hand the father’s partner may present some sort of risk of harm to the children. When I suggested that the father give instructions to his lawyer on the issue of whether his partner represented any form of harm in the house, it was submitted that there is nothing about her presence or her care or lack of care of the children on the evidence. However, on the father’s own evidence, the children are at the very least confused about where they want to live and issues of the relationship with the father’s partner arise in that context. Even on his own version, one of the children, B, I believe told her school that the girls hated their father’s partner and on that occasions the school has expressed concern about her well-being and asked the father to come and pick her up.

21. There is also no doubt, even on the father’s case, that the mother coming in contact with the father’s partner has caused the mother to act in an inappropriate and violent way. The reality is that the children, even on the father’s case, are caught up in the conflict that relates at least in part to the presence of the father’s partner in the home and they are trying to negotiate a continuing relationship with their father with the presence of someone whom the Court really has no knowledge in terms of their relationship.

22. In terms of likely effect of any changes in the children’s circumstances, it seems to not be disputed that the older two children who I am concerned with have resided with their father since separation and so the likely change would be if they were to reside with the mother. If the children were to remain in the father’s home living with the father and it were the case that they did not share a good relationship with the father’s partner then, as I say, there is little to be determined at this point, but if it were to be the case then that would be a matter that I must take into account.

23. In terms of the practical difficulty and expense of spending time with the other parent, it is unable to be assessed at this stage. I do not know what the mother’s proposal is if the children were to live with her, and the father’s case is that the children at this stage spend no time with their mother.

24. In terms of the issue of the capacity of the parents, I note that I think the only evidence assessed by some form of independent agency about parental capacity raise concerns about the mother’s capacity. It seems beyond dispute that the younger child, E, even though she is not the subject of this application for interim orders, was removed from the mother’s care because of concerns about her capacity. There are not similar concerns about the father’s capacity that arise on the only evidence that I have before me and the father also seems to have the support of extended family in terms of the care of the children. The father also says in his affidavit that he can work flexible hours to allow him to care for the children, so there is no adverse evidence as to issues of the father’s capacity before me.

25. I do not know anything about the maturity, sex, lifestyle or culture of the children. It is not asserted by anyone that they are Aboriginal children.

26. In terms of the issues towards the responsibility of parenthood, I think that there are some concerning factors in both parents’ positions. For example, right at a critical time when the parents physically separated, for the father to move his new partner into the home would indicate to me that there may be concerns about prioritising his own personal relationship above the relationship with the children, who were undoubtedly at a difficult time in their life. There are also concerns about the mother’s attitude towards the responsibility of parenthood that arise from her shortcomings, for want of a better word, in the separate proceedings in relation to E.

27. There are in this matter no particular issues relating to family violence, however, the father raises some concerns about the behaviour of the mother at times such as handover and at other times.

28. In all of the circumstances, particularly bearing in mind that we are dealing with a fairly short-term interim order at this stage on very limited information in terms of particularly promoting the stability and less change for the children and parental capacity, I am satisfied that it is in the children’s best interests that they live with their father and, as I have already indicated, that both parents be restrained from removing the children from their current schools and re-enrolling them in another school.

29. I also make an order, although it is an order that is quite dramatic in terms of the issue of the benefit of the children having a meaningful with their mother, that they have no contact with their mother. Even on the matters which are not in dispute, the mother has been turning up at schools, with extended family members, at the home, in a persistent effort to remove the children and some of that evidence is relied upon, albeit through the father’s affidavit.

30. I also make an order that the father is restrained from allowing his partner to live in his home, although it is the case that there are not gross allegations made or even specific allegations in relation to actual harm presented by the father’s partner. As I have indicated, even on his own version, the children are confused in relation to their relationship with the father’s partner and possibly even do not have a good relationship with the partner. Whether or not that order can be removed at a future time will have to be assessed to a very large extent on the assessment of the relationship between the partner and the children.

31. The orders that I make are that the children B and D live with their father and that the children not spend any time with their mother pending further order. The mother will also be restrained from contacting or approaching the children whatsoever. I make an order restraining the father’s partner from living in his home and she is to vacate the home by 8.00 pm this evening. A restraint will be made against the parties removing the children from their current school and re-enrolling them in another school.

1. I also make an order for an independent children’s lawyer to be appointed and I will formally invite the Department to intervene in these proceedings.

2. The matter should also be assessed for inclusion in the Magellan program and it is to be returned before a Registrar also for further directions.

3. The mother is to leave the Court precincts and, in particular, is not to attend the childcare section of the Registry. The father is to then take the child B from the childcare section.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 July 2014

Legal Associate:       

Date:    6 August 2014