Hamidi and Allaway & Anor - [2016] FamCA 447

FAMILY COURT OF AUSTRALIA

HAMIDI & ALLAWAY AND ANOR

[2016] FamCA 447

FAMILY LAW – CHILDREN – With whom the children live with – With whom the children spend time with – Parental responsibility – Best interests of the children – Department of Family and Community Services involvement with the youngest child – Expert evidence in relation to the mother’s mental health and parental capacity and associated risks to the children – The need to protect the children from risk of harm by the mother an overwhelming consideration – Orders appropriate to the children’s ages – Children to live with the father and supervised time with the mother or as agreed subject to consideration of the children’s ages – Father to hold sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother left the court precincts on the date of the hearing – Where the mother has been afforded procedural fairness – Where the matter proceeded to an undefended final hearing.

FAMILY LAW – COSTS – Father granted a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in relation to a vacated hearing date.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) s 10

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode[2006] FamCA 1346
Marvel & Marvel (No. 2)[2010] FamCAFC 101
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Tyson (No.2) (1993) 16 Fam LR 795

APPLICANT:

Mr Hamidi

RESPONDENT:

Ms Allaway

INTERVENOR:

Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall

FILE NUMBER:

PAC

3361

2014

DATE DELIVERED:

7 June 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

24 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Judge

SOLICITOR FOR THE APPLICANT:

Ryan & Seton Lawyers

COUNSEL FOR THE RESPONDENT:

Litigant in Person

COUNSEL FOR THE INTERVENOR:

Mr McGorey

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor's Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall

Orders

That the father have sole parental responsibility for the children D born … 2001, B born … 2003 and E born … 2013 (“the children”).
That the children reside with the father.
That the children spend time with and communicate with the mother as agreed between the mother and father in writing and in default of agreement as follows:
(a) As to the child E for two hours per month supervised at a Contact Centre with such time as far as possible to be in the company of the older children D and B provided that when E reaches the age of 12, with the father’s agreement there be the option of E’s monthly two hour supervised visit with the mother occurring outside of the Contact Centre, and supervised by an adult person acceptable to both parents,…

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.

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Details

Case: [2016] FamCA 447
Decision Date: 7 June 2016

CaseChat Overview and Summary

This case concerned parenting orders for three children, D, B, and E, with the father seeking sole parental responsibility and orders for the children to reside with him. The dispute arose in the context of the Department of Family and Community Services' involvement with the youngest child, E, and expert evidence regarding the mother's mental health and parental capacity, including associated risks to the children. The court was required to determine the living arrangements and time spent with each parent, as well as the allocation of parental responsibility, with the paramount consideration being the best interests of the children.

The court was required to determine the legal issues of where the children should live and spend time, and who should hold parental responsibility, in light of expert evidence concerning the mother's mental health and potential risks to the children. The court also considered the procedural fairness afforded to the mother, who had left the court precincts on the date of the hearing, allowing the matter to proceed to an undefended final hearing.

Foster J reasoned that the need to protect the children from risk of harm by the mother was an overwhelming consideration. The court applied the principles of the best interests of the children in making orders appropriate to their ages. The father was granted sole parental responsibility, and the children were ordered to reside with him. The mother was granted supervised time with the children, with specific provisions for each child's age and evolving capacity, including the use of a contact centre and the potential for increased independence as they reached adolescence. The court also made orders regarding the practical arrangements for supervised contact, including the sharing of costs and the requirement for both parents to comply with the contact centre's policies and directions.

In addition to the parenting orders, the father was granted a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in relation to a vacated hearing date.

Orders

Orders of the court

That the father have sole parental responsibility for the children D born … 2001, B born … 2003 and E born … 2013 (“the children”).

That the children reside with the father.

That the children spend time with and communicate with the mother as agreed between the mother and father in writing and in default of agreement as follows:

(a) As to the child E for two hours per month supervised at a Contact Centre with such time as far as possible to be in the company of the older children D and B provided that when E reaches the age of 12, with the father’s agreement there be the option of E’s monthly two hour supervised visit with the mother occurring outside of the Contact Centre, and supervised by an adult person acceptable to both parents, who might be one or both of the older children D and B or failing agreement by a contact supervision service such as H Centre and provided that provided that from age 14 the child be able to attend only each alternate monthly visit at her discretion.

(b) As to the older children D and B for two hours per month supervised by a person agreed by the mother and father and failing agreement by a contact supervision service such as H Centre with such time as far as possible to be concurrent with the child E’s time with the mother and provided that from age 14 (including D currently), each child be able to attend only each alternate monthly visit at their discretion.

That the mother and father do all things necessary to:

(a) contact the I Contact Service, … (“the Contact Centre”) within 14 days and arrange an appointment for assessment for suitability for supervision of the time the child E spends with the mother;

(b) attend the assessment;

(d) comply with all reasonable policies and rules of the Contact Centre; and

(e) comply with all reasonable requests or directions of the staff of the Contact Centre.

That if after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the child E is to have contact with the mother at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

That the father must deliver the child E to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

That in the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 3(a) then contact shall occur at the times that are offered by the Contact Centre.

That the parties or either of them are to attend and undertake any course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.

That the time the child E spends under Order 3(a) is to be supervised by the Contact Centre and each of the parents must pay one half of any reasonable fees for the supervision on each occasion of supervision.

10.

That the mother must not attend the Contact Centre or its vicinity before the time with the child E is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child E is to end.

11.

That the period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

12.

From the age 16, each child be able to spend time with the mother outside of the supervised times, for a maximum of one day per fortnight and not including overnight time, and in a manner determined by the child in collaboration with the mother, including the setting of the time and the presence of other persons such as one or both of the half-siblings with such time only to be initiated by the child, not by the mother, and to be planned in transparent collaboration with the father.

13.

That the father use his best endeavours to ensure that the childrens’ supervised time with the mother be proximate to and if possible on special days such as Mother’s Day, the mother’s birthday, the children’s birthdays and the Christmas festive period and in the event that it is not possible for the children to spend time with the mother on such special days then the father facilitate the children having telephone contact with the mother on those days.

14.

That subject to the father’s agreement the children’s older half-brother and half-sister be at liberty to attend on occasions when the children are spending time with the mother in accordance with these orders.

15.

That the mother and father be restrained from consuming or being under the influence of illicit drugs within 12 hours of caring for or spending time with the child E.

16.

That the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child E.

Federal Proceedings (Costs) Act 1981

17.

That the applicant father is granted a costs certificate under the provisions of s 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the vacated hearing on the 20 May 2016.

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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