Hollis & Anwar

Case [2024] FedCFamC1F 248

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hollis & Anwar [2024] FedCFamC1F 248

File number: MLC 8548 of 2022
Judgment of: CARTER J
Date of judgment: 17 April 2024
Catchwords: FAMILY LAW – PARENTING – Where the child experienced significant emotional dysregulation which settled following interim orders for a change of residence into his father’s primary care – Where the father seeks a continuation of the interim orders on a final basis – Where the mother seeks an increase of the child’s time in her care – Where the mother has engaged in intensive personal therapy – Allocation of parental responsibility – Application for a change of the child’s surname.
Legislation:

Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 67ZC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)

Cases cited:

AMS v AIF (1999) 199 CLR 160

Bielen & Kozma (2022) 66 Fam LR 59

Godfrey v Sanders [2007] FamCA 102

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

Oberlin & Infeld (2021) 63 Fam LR 88

Division: Division 1 First Instance
Number of paragraphs: 198
Date of hearing: 4 – 8, 12 March 2024
Place: Melbourne
Counsel for the Applicant: Mr Werner
Solicitor for the Applicant: Hope Earle Lawyers
Counsel for the Respondent: Mr Strong
Solicitor for the Respondent: Eastern Community Legal Centre
Counsel for the Independent Children's Lawyer: Ms Hutchings
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 8548 of 2022

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

MR HOLLIS

Applicant
AND:

MS ANWAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

17 APRIL 2024

THE COURT ORDERS THAT:

Change of surname

1.The parents forthwith do all acts and things and sign all documents necessary to cause a change of the surname of the child X born 2016 from ANWAR to ANWAR‑HOLLIS, and to otherwise do all things to ensure the child uses that new name both formally and informally.

Parental responsibility

2.The father have sole parental responsibility for decisions regarding the child’s health and medical matters. Prior to making any decision in the exercise of that responsibility:

(a)the father advise the mother in writing of his proposal;

(b)the mother has seven days to provide a response to the father in writing; and

(c)the father thereafter promptly inform the mother as to the decision he has made.

3.The parties otherwise have equal shared parental responsibility for the child.

Living arrangements

4.The child live with father.

5.Unless otherwise agreed by the parents in writing the child spend time with the mother as follows:

(a)each alternate weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) to the commencement of school on Monday and in the event that Monday is a public holiday or a non–school day time is to conclude at the commencement of school (or 9.00 am if a non-school day) on Tuesday.

(b)during each school term holiday,…

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AGLC
Hollis & Anwar [2024] FedCFamC1F 248
Case
[2024] FedCFamC1F 248
Decision Date

CaseChat Overview and Summary

In the matter of Hollis & Anwar, the Federal Circuit and Family Court of Australia was tasked with determining parenting arrangements for a seven-year-old child, X, amidst complex family dynamics. The primary issue was to balance the emotional and developmental needs of X with the parenting capabilities of both parties, given their respective challenges and commitments.

The court had to decide on the allocation of parental responsibility, living arrangements, and the extent of contact between X and each parent. Key considerations included the mother's traumatic history, her recent engagement in intensive personal therapy, and the father's role as the primary caregiver during interim orders. The mother sought an increase in her care time, while the father aimed to maintain his primary caregiving role, which had resulted in significant improvements in X's emotional stability.

The court's reasoning focused on X's best interests, recognising the importance of stability and the need for nurturing relationships with both parents. It was concluded that while X's relationship with his mother was important, the current arrangement with the father as the primary caregiver was more beneficial for his emotional well-being. The court acknowledged the mother's efforts in therapy but noted that her past instability and frequent relocations had negatively impacted X.

The court ordered that X should primarily reside with the father, with specific arrangements for weekend and holiday visits with the mother, along with provisions for special occasions and communication. Parental responsibility was allocated with the father having sole responsibility for health decisions, while both parents shared equal responsibility otherwise. The court also mandated a change in X's surname to reflect both parents and imposed restrictions on certain family members to prevent potential harm.

The final orders were designed to provide a structured yet flexible parenting arrangement that prioritised X's emotional stability and development while ensuring meaningful relationships with both parents. The court also included detailed provisions for communication, medical decisions, and extracurricular activities to facilitate cooperation between the parents.

Orders

Orders of the court

MLC 8548 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HOLLIS

Applicant

AND:

MS ANWAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

17 APRIL 2024

THE COURT ORDERS THAT:

Change of surname

1. The parents forthwith do all acts and things and sign all documents necessary to cause a change of the surname of the child X born 2016 from ANWAR to ANWAR‑HOLLIS, and to otherwise do all things to ensure the child uses that new name both formally and informally.

Parental responsibility

2. The father have sole parental responsibility for decisions regarding the child’s health and medical matters. Prior to making any decision in the exercise of that responsibility:

(a) the father advise the mother in writing of his proposal;

(b) the mother has seven days to provide a response to the father in writing; and

(c) the father thereafter promptly inform the mother as to the decision he has made.

3. The parties otherwise have equal shared parental responsibility for the child.

Living arrangements

4. The child live with father.

5. Unless otherwise agreed by the parents in writing the child spend time with the mother as follows:

(a) each alternate weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) to the commencement of school on Monday and in the event that Monday is a public holiday or a non–school day time is to conclude at the commencement of school (or 9.00 am if a non-school day) on Tuesday.

(b) during each school term holiday, time pursuant to Order 5(a) is extended as follows:

(i) if the alternate weekend falls on the first and third weekends of the holidays, time on the first weekend be extended to conclude at 4.00 pm Tuesday and time on the third weekend be extended to commence at 4.00 pm Thursday (being eight nights in total over the whole term holiday);

(ii) if the alternate weekend falls on the middle weekend of the holidays, time shall commence at 4.00 pm on the Thursday and conclude at 4.00 pm on the Monday, and there be a further three-night block at times agreed, and failing agreement from 4.00 pm on the last Thursday of the holidays to 4.00 pm on the last Sunday of the holidays (being seven nights in total over the whole term holiday).

(c) during the long summer holidays at times agreed and failing agreement:

(i) in 2024/2025 the time pursuant to Order 5(a) be extended to commence at 4.00 pm on the Thursday and to conclude at 4.00 pm on the Tuesday each alternate weekend (being blocks of five nights); and

(ii) in 2025/2026 and each year thereafter, time occur on a week about basis, with changeovers to occur at 4.00 pm each Friday;

(d) at such other or further times as is agreed in writing.

Special occasions

6. Notwithstanding any other order, the child spend time during special occasions with each of his parents as agreed and failing agreement:

(a) with the father from 10.00 am on Father’s Day until commencement of school the following Monday (or 9:00 am if a non-school day);

(b) with the mother from 10.00 am on Mother’s Day until commencement of school the following Monday (or 9:00am if a non-school day);

(c) on his birthday with the parent who would otherwise not be entitled to spend time with him pursuant to these orders:

(i) from the conclusion of school until 7.30 pm if a school day; and

(ii) from 10.00 am to 2.00 pm if a non-school day;

(d) on the birthdays of his siblings, B and C, if he is not otherwise in the mother’s care, with the mother:

(i) from the conclusion of school until 7.30 pm if a school day; and

(ii) from 10.00 am to 2.00 pm if a non-school day;

(e) for Easter:

(i) in odd numbered years from 10.00 am on Good Friday until 10.00 am on Easter Sunday with the mother and from 10.00 am Easter Sunday until 10.00 am on the Tuesday, following Easter Monday, with the father; and

(ii) in even numbered years, from 10.00 am on Good Friday until 10.00 am on Easter Sunday with the father and from 10.00 am Easter Sunday until 10.00 am on the Tuesday, following Easter Monday, with the mother.

(f) For Christmas:

(i) in each even numbered year (commencing 2024) with the father from 3.00 pm Christmas Eve until 3:00 pm Christmas Day and with the mother from 3:00 pm Christmas Day until 3:00 pm Boxing Day.

(ii) in each odd numbered year (commencing 2025) with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day and with the father from 3.00 pm Christmas Day until 3.00 pm Boxing Day.

Communication

7. The child communicate with the non-resident parent by video call or phone, every second day for a period of not less than 15 minutes at times as agreed between the parents, and in default of agreement, between 6.00 pm and 7.00 pm, with the parent who has the child in his or her care to initiate the call.

8. Each parent facilitate the child contacting the other parent at all reasonable times at the child’s request.

9. All communication between the parents is to be in writing via a parenting app, or in the event of technical issues or an emergency, via text message. The mother nominate the parenting app within 14 days of these orders.

10. The parents forthwith inform and keep the other informed at all times of their respective email address, mobile telephone number and residential address, and provide the other parent with not less than 48 hours written notice of any proposed changes to such contact details.

Medical

11. Each parent is at liberty to administer any over the counter and prescription medication to the child, provided such administration is strictly in accordance with the directions on the medication or as advised by the child’s treating medical practitioner.

12. In the event the child needs to be seen by a general practitioner, each parent arrange for the child to attend upon D Medical Centre, unless this is not practicable.

13. The father inform and keep the mother informed as to the child’s health, including providing her with the full names and contact details of any medical and/or allied health professionals, including specialists and counsellors upon whom the child attends.

14. The mother is at liberty to liaise with all medical and allied health professionals upon whom the child attends.

15. Each parent is at liberty to obtain medical assistance for the child if urgently required and shall forthwith inform the other parent as soon as practicable of:

(a) any illness or injury suffered by the child whilst in his or her care; and

(b) the name and contact details of any medical and allied health professionals upon whom the child attended.

16. Each parent is at liberty to provide a copy of these orders to the child’s treating health and allied health practitioners.

Changeover

17. During the school term, changeovers on all school days occur at the child’s school.

18. During holiday periods, non-school days, and weekends (if applicable), changeover is to occur in the car park of Hungry Jacks at E Shopping Centre unless otherwise agreed in writing.

School

19. Unless otherwise agreed between the parties, the child remain at F School to complete his primary education,.

20. Each parent is hereby authorised:

(a) to obtain from the child’s school at their own expense all notices, letters, photographs, school reports, invitations and like communications; and

(b) to attend parent/teacher interviews, school concerts, sports days, assemblies or other activities to which parents are invited to attend from time to time.

21. In the event any school notice is provided in hard copy, the parent receiving such notice upon collection of the child from school will forthwith provide the other parent with an electronic copy to ensure the other parent has sufficient time to comply with any requests made by the school.

22. Each parent is to do all acts and things and sign all such documents and provide all necessary authorities to ensure that both parents have access to the child’s school portal.

23. The parents are at liberty to provide a copy of these orders to the child’s school.

Extracurricular activities

24. Subject to Order 25, both parents are at liberty to enrol the child in any extracurricular activities that fall during the time the child is in his or her care.

25. In the event the child’s attendance at any activity is mandatory during the time the child is scheduled to be in the care of the non-enrolling parent, the consent of the non‑enrolling parent is required prior to the child being enrolled in that activity.

26. Each parent inform the other as to any extracurricular activity in which the child is enrolled, and provide the non-enrolling parent with full details of training, games, activities, open days, and the like.

27. Both parents and members of their extended family (save as set out in Order 29 herein) are at liberty to attend all extracurricular activities to which parents or family members are normally invited regardless of whose care the child is in on that particular day.

Injunctions

28. The parties, their servants and agents be restrained by injunction from:

(a) abusing, insulting, belittling, rebuking, criticising or otherwise denigrating the other parent or members of that parent's family to, or in the presence or hearing of the child or permitting the child to remain in the presence or hearing of anyone else engaging in such behaviour;

(b) discussing these proceedings, the documents filed herein or the reports prepared with or in the presence or hearing of the child or allowing the child to remain in the presence or hearing of anyone else engaging in such behaviour; and

(c) attending at the other parent’s home unless agreed between the parties in writing.

29. The mother be restrained from allowing the child to come into contact with her brother, Mr G, or the maternal grandmother without the father’s prior consent.

Procedural

30. All extant applications are otherwise dismissed and the matter is removed from the list of active cases.

31. The Independent Children's Lawyer be discharged.

AND THE COURT NOTES THAT:

A. Pursuant to s 62B and s 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 person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There were other disputes between the parties’ competing proposals of a less significant nature. I will deal with those issues later in these reasons. THE EVIDENCE The mother relied on:(a)her trial affidavit filed on 9 February 2024;(b)the affidavit of Ms K, friend, filed on 9 February 2024. She was not required for cross‑examination;(c)the affidavit of Ms J, the mother’s psychologist, filed on 13 February 2024. The father relied on:(a)his Further Amended Initiating Application filed on 31 July 2023;(b)his trial affidavit filed on 22 January 2024;(c)the affidavit of Ms L, the paternal grandmother, filed on 22 January 2024. She was not required for cross-examination; and(d)his affidavit-in-reply filed on 23 February 2024. In light of the mother’s proposed orders articulated at the commencement of the trial, much of the parties’ affidavit material was of marginal relevance. Indeed, the father’s trial affidavit in particular was unnecessarily lengthy and contained much unhelpful material, including quoting extensively from various reports and correspondence. It also contained arguments, opinions, and submissions, and was repetitive. The mother’s trial affidavit included quotes from subpoenaed records. Both parties’ trial affidavits were approximately 150 pages long without exhibits. The father’s affidavit in particular would have been far shorter – and of more use – had it been confined, as affidavits are meant to be, to incidents that the witness has directly experienced themselves which are actually relevant to an issue in dispute. Similarly the affidavits included a large number of exhibits. The father’s trial affidavit attached 400 pages of exhibits including reasons for judgment from an interim hearing and a copy of the pre-action procedures (being an attachment to a letter that was exhibited). Counsel were reminded at the outset of the hearing of rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Very few of the exhibits were actually tendered in Court and admitted into evidence. This strongly suggested their inclusion in the parties’ trial material was unnecessary. The Court’s focus must be on X’s best interests, and how to meet those moving forward. A detailed dissection of significantly historical incidents between the parties in this particular matter would provide little assistance in determining the orders that now should be made. No doubt the preparation of such lengthy trial material would have attracted significant legal fees. Both parties endeavoured to give their evidence in a straightforward manner. However the father took multiple opportunities to criticise the mother, and required redirecting to answer the question at times. The mother was an impressive witness in terms of her responsiveness, and her open and honest answers. Ms J was also an impressive witness. She made it plain that the mother has deeply engaged in intensive personal therapy and remains committed to doing so.

Decision

Reasons for decision

There was little evidence at trial regarding X’s relationships with his brothers. The mother said the limited time in her household does make it difficult for X to develop and strengthen the sibling bond. I accept that sibling relationships are very important, and X’s relationships with his brothers should be nurtured and supported. Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i); No doubt both of the parents love X and want what is best for him. However, I have some concerns about each of the parents. The mother The mother is 29 years old. She works in childcare. She is the primary carer for B and C. B has no time with his biological father who has opted out of playing a role in B’s upbringing. C spends some limited time with his father, supervised by his paternal grandparents. The mother experienced a traumatic and abusive childhood. Her reports of her experience in her family of origin and then in foster care are deeply saddening. The mother’s history has had an enduring impact on her, on her functioning and on her parenting. Dr N referred to the mother’s lifestyle now continuing to be somewhat chaotic, with that chaos likely transmitting to her parenting. Whilst the mother has generally supported X’s time with his father, in mid–2022 she withheld X from spending time with his father. She demonstrated somewhat limited insight into the impact on X of doing so or how confusing it would have been for him to suddenly stop seeing his father. X also missed out on a considerable amount of schooling at that time. The mother did not seem to contemplate that it may have been her actions and responses that impacted on X and his behaviour. Since separation the mother has moved homes frequently – having lived with X in seven rental homes and spending some periods in motels provided to her as emergency accommodation. I accept that at times the changes in residence were the result of factors outside the mother’s control. She is renting, and accordingly, when a lease ends, if it is not renewed, she must find alternate accommodation. However, on more than one occasion the mother said she moved from accommodation as she was fearful that the father knew where she was living – not because the lease ended and was not renewed. At times the mother and X left accommodation in a rush, with just a suitcase of clothes, leaving behind X’s bedroom, bed, toys, and personal items. Even when the move was planned, X has had to adjust to living in many houses and sleeping in different bedrooms. The impact on X and on his sense of stability and safety must have been profound. I note in the Department of Families, Fairness and Housing response the mother’s house was described in late 2022 as being messy, cluttered, and chaotic. Child Protection also reported at that time the mother repeatedly expressed she had felt overwhelmed and struggled to respond to X’s behaviours at times whilst also meeting the needs of her other children. Child Protection did observe the mother to be loving and appropriate, and engaging well with supports and service. Ms J

Ratio Decidendi

Legal Principle Established

I am satisfied that time between the mother and X does not need to increase in order to ensure X’s relationship with his mother is one of significance to him. It is clear he loves his mother, and his relationship with her is evidently important to him even on the basis of the time he currently spends in her care. However, I am of the view that it is important for X to be able to spend some extended holiday time with his mother, as well as to share special occasions, and to continue to regularly communicate with her to continue to deepen and strengthen their bond. Additional considerationsIssues relating to the child – including his views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h) X is seven years old. I do not have current, independent evidence as to his views. He was interviewed by Dr N in November 2022. X has also been interviewed on a number of occasions by Child Protection and the Sexual Offences and Child-abuse Investigation Team (SOCIT). In addition, he has engaged with medical and allied health professionals at O Hospital, P Hospital and then through CYMHS, until mid-2023. It is necessary to set out a brief chronology of events to understand what led up to X’s hospitalisations in late 2022. The parties were only briefly in a relationship. They separated prior to X’s birth. The mother facilitated time between X and the father, including at her home, with such time increasing over a number of months, building up eventually to X spending five nights a fortnight in the father's care. The mother formed two intimate relationships after separating from the father. Her relationship with Mr Q produced one child, B, who was born in 2020. The mother said her relationship with Mr Q ended when she fell pregnant and Mr Q has elected to play no role in B’s care. The mother said she did not live with Mr Q, but he did regularly attend at her home, together with his daughter, during their relationship. In late 2020, X was first referred to CYMHS. The mother felt he needed assistance to manage his emotional responses, as he was behaving aggressively and expressing suicidal ideation at times. The mother then formed a relationship with Mr R. She and Mr R met in 2019 through church, and were friends before becoming housemates in 2021 and then intimate partners. Mr R has two children, now aged six and eight who stayed at the home on alternate weekends. The mother’s relationship with Mr R ended abruptly in mid-2021. She acknowledged she had become fearful for her safety whilst living with Mr R, and she left the house, taking only a suitcase and handful of the children’s belongings. She, X and B then stayed with a friend of the mother for a few nights and then at a motel with the assistance of S Services until more permanent accommodation was secured in late 2021. At the time the mother moved into the motel, she was approximately three months pregnant with Mr R’s son, C. C was born in 2022. Mr R currently has time with C, supervised by his parents. The mother said she was at times fearful of Mr R and obtained an Intervention Order against him after they separated. That order has since expired.