Huda & Yasin
[2023] FedCFamC2F 1344
•23 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Huda & Yasin [2023] FedCFamC2F 1344
File number(s): MLC 1299 of 2015 Judgment of: JUDGE GLASS Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – PARENTING - Whether application should be dismissed pursuant to the guideline principle in Rice & Asplund Legislation: Family Law Act 1975 (Cth) s 60CA, 65Y Cases cited: Dautry & Wemple (2018) FLC 93-876
Defrey & Radnor [2021] FamCAFC 67
Defrey & Radnor (No. 2) (2021) FLC 94-044
DL & W (2012) FLC 93-496
Kuebler & Kuelber (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Oberlin & Infeld (2021) FLC 94-017
Rice & Asplund (1979) FLC 90-725
Sadasivam & Seshan (2019) FLC 93-899
SPS & PLS (2008) FLC 93-363
Tindall & Saldo (2016) FLC 93-72
Division: Division 2 Family Law Number of paragraphs: 39 Date of hearing: 13 October 2023 Place: Melbourne Counsel for the Applicant: Mr Battley Solicitor for the Applicant: Woodbridge Lawyers Counsel for the Respondent: Mr Marchetti Solicitor for the Respondent: Trapski Family Law ORDERS
MLC 1299 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HUDA
Applicant
AND: MR YASIN
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.All extant applications be dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
X was born in 2013 and is now ten years old. Her parents separated in early 2014.
In 2015, X’s mother, Ms Huda, applied to the Court for parenting Orders. The proceedings were listed for trial on 15 December 2016, on which day, final parenting Orders were made by consent. Further Orders were made by consent on 10 October 2019.
The extant Orders provide for X to live with each of her parents essentially in an equal time arrangement and provide for her parents to have equal shared parental responsibility for her. Her parents are restrained from removing X from the Commonwealth of Australia, and it has been requested that the Australian Federal Police give effect to that Order by placing X’s name on the Family Law Watchlist.
Ms Huda now applies to discharge those parenting Orders and seeks new parenting orders. X’s father, Mr Yasin, proposes that Ms Huda’s application be dismissed pursuant to the guideline principle in Rice & Asplund.[1]
[1] (1979) FLC 90-725; Oberlin & Infeld (2021) FLC 94-017 at [35].
The essential enquiry is whether, assuming the evidence of Ms Huda is accepted, there are ‘new events’ sufficient to provoke a new enquiry.[2] The application of the principle remains a manifestation of the principle that X’s best interests are paramount.[3] I am nevertheless not required to undertake an assessment of all the factors statutorily relevant to a determination of those best interests.[4]
[2] Defrey & Radnor [2021] FamCAFC 67 (“Defrey & Radnor”) at [16] and the cases there cited.
[3] Family Law Act 1975 (Cth) s 60CA; SPS & PLS (2008) FLC 93-363 (“SPS & PLS”) at [48].
[4] DL & W (2012) FLC 93-496 (“DL & W”) at [77].
The conclusion underlining a dismissal of an application pursuant to the principle in Rice & Asplund is that X’s interests in not being the subject of further litigation is more powerfully in her welfare than to allow the application to continue.[5] Unless other considerations are more weighty, it is not X’s best interests to be the subject of repeated litigation between her parents.[6]
[5] SPS & PLS at [81].
[6] Defrey & Radnor at [21].
NEW PARENTING ORDERS SOUGHT
Although Ms Huda proposes a discharge of all extant Orders, she proposes that X continue to live at each of her parent’s homes for seven nights each fortnight. The amendments she seeks include that:
·she have sole parental responsibility with respect to X’s education and extra-curricular activities;
·various changeover times are changed, including reducing X’s mid-week after school time with her father;
·X’s communication time with her parents is varied, including that X speak to her mother every day when in her father’s care for school holidays;
·X’s time with her father be suspended on school performance nights;
·X be permitted to travel overseas;
·X be required to attend “all end of year performances, concerts, games and sports finals associated with extra-curricular activities when the child is in the father's care”;[7] and
·X’s parents be required to ensure her attendance at “events to which she is invited”.[8]
[7] Amended Initiating Application of Ms Huda filed 31 August 2023, paragraph 27.
[8] Amended Initiating Application of Ms Huda filed 31 August 2023, paragraph 28.
Ms Huda’s application might suggest a short and narrow hearing for a small alteration of parenting orders, which might not be impeded by the Rice & Asplund principle.[9] However, she submits that she may amend her application in a number of ways. There was some suggestion that she may change her proposal for X to continue to spend equal time with each of her parents. She foreshadowed seeking further orders that permit her to collect X from her father’s care to facilitate her attendance at extra-curricular activities and providing for makeup time. She also confirmed that she would seek leave to join Mr Yasin’s wife to the proceedings and seek injunctive relief against her.
[9] Dautry & Wemple (2018) FLC 93-876 at [25], citing SPS & PLS at [83].
I am not satisfied that the scope of the new hearing proposed by Ms Huda could be described as short and narrow such that it ought not be impeded by the rule in Rice & Asplund. She herself proposes that the matter be listed for a final hearing spanning two days.
CHANGES IN CIRCUMSTANCES RELIED ON
Ms Huda relies essentially on four matters in support of her contention that there has been a significant change in circumstances warranting further litigation into X’s welfare. She relies on the fact of Mr Yasin’s re-marriage, and what she describes as some incidents with X’s step-mother. She relies on what she describes as difficulties with extra-curricular activities. She also relies on what she describes as an illogical ban on international travel.
Ms B
No attempt was made to articulate why it is that Mr Yasin re-marrying in and of itself constitutes a change in circumstances such that further litigation into X’s best interests is warranted. I find no basis to reach that conclusion. It is the nature and quality of the change in circumstances that is relevant, not the mere conclusion that fresh evidence exists.[10]
[10] Tindall & Saldo (2016) FLC 93-727 at [88].
Ms Huda gives the following evidence under the heading “X witnessing family violence”:
[X] reported that she has witnessed many disputes between [Mr Yasin] and [Ms B]. [X] once recounted when [Ms B] yelled at [Mr Yasin]: "You just don't care about me. You treat me like I am your servant. You are so selfish and irresponsible. " [X] then said to me: "I hope they don 't end up in divorce".
[X] reported another dispute between [Mr Yasin] and [Ms B]. They were screaming and yelling loudly at each other while [Mr Yasin] was driving. [Ms B] was sitting in the front passenger seat and [X] was seated in the back with her half-sisters. [Ms B] was so upset that she opened the car door at the traffic light, she got out of the car and started walking away from the car towards the traffic. [X] said: "Dad quickly parked the car, got out and went to follow [Ms B] but he lost track of her". [X] then said: "Dad and I got out of the car, and we went to look for [Ms B]".
There was another instance when [X] reported that she witnessed her stepmother banging her head against a wall in frustration. She said: "Dad had to step in to stop her". [X] said: "Both the kids were crying, and she felt afraid".[11]
[11] Affidavit of Ms Huda filed 31 August 2023, paragraphs 42 to 44.
I am to accept Ms Huda’s evidence at its highest.[12] However, she also adduced evidence from Mr C, psychologist. Mr C prepared a report dated 22 August 2022 in which he reports that Ms Huda told him that “she fully appreciates that [X] has a lovely relationship with her stepmother and that in the past, she was reactive to what [X] told her, about what she was told the stepmother had said and done.”[13]
[12] Defrey & Radnor at [16].
[13] Report of Mr C dated 22 August 2022, paragraph 21.
Importantly, Mr C also reports that X:
… told me that she is completely accustomed to the current living arrangements, that she enjoys living in two houses, is completely comfortable moving between houses, does not find it difficult, enjoys the relationship with her father, her stepmother and her younger sister, and is looking forward to her soon to be born sibling. [X] told me that she has an excellent relationship with her stepmother, that this person treats her kindly and treats her well, that there have not been any difficulties between them and that she enjoys the time spent with her.[14]
[14] Report of Mr C dated 22 August 2022, paragraph 22.
He goes on to report that X:
… told me she has no problems, that it is actually better that her parents had divorced because so many good things have come as a consequence, and specifically, she told me that she now has a sister, that she gets to live in 2 houses, that she enjoys the individual time with her mother, has a special relationship with her father, and that her parents being separate means that they do not have conflict. [X] told me that she likes having two rooms, two families, and that there is nothing about the arrangement that she finds difficult.[15]
[15] Report of Mr C dated 22 August 2022, paragraph 23.
Ms Huda’s evidence accordingly presents incoherently. On the one hand, she reports X experiencing difficulties in her father’s household as a result of disputes between her father and step-mother. On the other, she relies on Mr C reporting X having an excellent relationship with her step-mother, enjoying living in both households and finding nothing difficult about her present arrangements. Mr C was “left with no concern regarding X, her mental state or her presentation”.[16]
[16] Report of Mr C dated 22 August 2022, paragraph 24.
Given the incoherency in the evidence Ms Huda adduced, all of which I am to take at its highest, I must determine how that evidence is to be weighed. Ms Huda’s affidavit evidence relies entirely on X’s reports to her. She gives no particulars of when such reports were made. The veracity of those allegations is put in issue by Mr Yasin. They are inconsistent with X’s report to an expert psychologist who has assessed there to be no concerns about X deriving from her relationships with her father and step-mother. I conclude that greater weight ought be given to Mr C’s evidence.
I am not satisfied that there are issues deriving from X’s alleged exposure to family violence in her father’s household that comprise circumstances warranting further litigation into X’s best interests. I note that Ms Huda continues to propose that X sleep at Mr Yasin’s home for seven nights each fortnight, which position is inconsistent with any suggestion that X is at unacceptable risk of harm in any relevant sense in that household.
Extra-curricular activities
Ms Huda complains that Mr Yasin has not facilitated X’s attendance at extra-curricular activities whilst she has been in his care.
The October 2019 Orders provide that:
The parents shall do all things to ensure that the children attends any extra-curricular activities that she is currently enrolled in and each parent is restrained from enrolling the child in any additional extra-curricular activities outside of that parent's time with the child, unless agreed otherwise between the parents.[17]
[17] Final Consent Orders dated 10 October 2019, paragraph 21.
Ms Huda has not complied with the Order. The activities she complains about Mr Yasin failing to take X to were not the subject of agreement between the parties. Ms Huda has unilaterally made a number of extra-curricular activity enrolments. I am not satisfied that her failure to comply with the injunction against doing so for any activity falling in X’s time with her father amounts to a change in circumstances warranting a re-opening of the parenting proceedings.
In any event, granting Ms Huda sole decision-making authority with respect to those enrolments will not resolve the issue. X will still need to be conveyed to such activities in her father’s time. Ms Huda sought no relief to resolve that issue. She indicated in oral submissions that she would seek to amend her application to collect X from her father and deliver her to those activities and afford him makeup time for doing so. She suggested that makeup time might occur during school holiday periods. The suggested further relief sought would add to the multiplicity of changeovers for X across the fortnight. In circumstances where Ms Huda could then simply enrol X in any number of extra-curricular activities during her time with Mr Yasin, the multiplicity of changeovers could grow exponentially. I am not satisfied that the potential costs and benefits of embarking upon a new trial into the issue warrant the re-opening of the proceedings.[18]
[18] DL & W at [75] to [77].
International Travel
The October 2019 Orders prohibit X’s parents from permitting X to travel internationally. Ms Huda described the Order as illogical and irrational. I reject those characterisations. It is an offence for X’s parents to take her out of Australia without the consent of the other parent or an order of the Court.[19]
[19] Family Law Act 1975 (Cth) s 65Y.
No change in circumstance is identified referrable to this ground. X still has extended family members overseas, just as she did when the previous Orders were made.
The Orders did provide for the parties to attend upon Mr C to obtain a recommendation in relation to removing X from the Family Law Watchlist and to attend mediation if no agreement is reached. Those steps have now been undertaken or attempted.
As Mr Yasin concedes, it is open to Ms Huda to make an application for international travel, which application would break a deadlock between the parties in relation to the exercise of their equal shared parental responsibility for X.[20]
[20] Sadasivam & Seshan (2019) FLC 93-899 at [32].
However, Ms Huda has not crafted her application referrable to the principles applicable to the determination of the travel applications.[21] In particular, the relief she seeks does not articulate where it is proposed X travel, enabling an assessment of any threats to X’s welfare posed by that environment or whether the country is a signatory to an international convention. It makes no proposal for specific valuable security to be offered.
[21] Kuebler & Kuebler (1978) FLC 90-434; Line & Line (1997) FLC 92-729.
In the absence of an articulation of Ms Huda’s proposal by reference to applicable principle, it is unable to be considered in its present form. She identified no precedent for the general relief that she seeks, which effectively grants both parties carte blanche authority to travel anywhere in the world with X.
Even though a travel application in proper form might need to come back to the Court at some future point, it does not establish that the other aspects of the parenting Orders Ms Huda wishes to litigate should also be available for re-litigation.[22]
[22] Defrey & Radnor (No. 2) (2021) FLC 94-044 (“Defrey & Radnor (No 2”) at [85].
Parental conflict
Ms Huda appropriately emphasizes the deleterious effect on X occasioned by her continued exposure to conflict between her parents. She relies on Mr C’s opinions to that effect.
Ironically, Ms Huda now seeks to perpetuate that conflict by embroiling X in further litigation between her parents. She submits that the parties have not previously been cross-examined. I do not accept any suggestion that such a forensic procedure is likely to reduce the conflict between the parties.
Ms Huda was unable to articulate how it is that the relief sought by her will resolve the conflictual relationship between the parties. Indeed, it is contrary to Mr C’s opinion that:
I would encourage the Court to embrace in totality the likelihood that the problems that have existed will continue; and that as a consequence, there is a high risk that the fallout for [X] will be substantial, although the indications are that thus-far she has managed to avoid the negative consequences thereof.[23]
[23] Report of Mr C dated 22 August 2022, paragraph 36.
Although Ms Huda referred to Mr C’s suggestion that the parties are excellent candidates for the appointment of a parenting co-ordinator, she makes no application to that effect.
If it be suggested that the conflict between X’s parents amounts to a change in circumstance, the evidence does not support the conclusion. The only evidence now before the Court relating to the parties’ prior conflictual relationship is provided by Mr C who had assessed the family in mid-2015. He offers the following opinions:
I draw attention to the contents of my previous Family Report, and specifically the description of [Mr Yasin] and [Ms Huda]'s relationship as being highly conflicted, that they had experienced significant problems from the very outset of the relationship.[24]
…
Having again interviewed [Mr Yasin] and [Ms Huda], having read the SMS and email communication shared by the parties, and having again spoken with [X], it is very clearly my view that at the most fundamental level, their relationship has not changed, that their conflict remains prominent, that their lack of conflict resolution remains conspicuous by its absence and that both escalate by working on an external locus of control, that is, that they explain their behaviour and justify their actions on the basis of how they perceive to have been treated by the other.[25]
[24] Report of Mr C dated 22 August 2022, paragraph 3.
[25] Report of Mr C dated 22 August 2022, paragraph 4.
Much as X’s best interests would be well served by a reduction in the conflict between her parents, I am not satisfied that further litigation into her best interests will achieve that aim. Neither am I satisfied that there has been any change to the parties’ conflictual relationship that warrants a new enquiry into X’s best interests.
As has been observed, the general problem with more complex and prescriptive orders of the type now contemplated by Ms Huda is that “the more one attempts to define arrangements between parents who are in high conflict, the more chance there is for a slip and for new points of disagreement to potentially emerge”.[26]
[26] Defrey & Radnor (No 2) at [39].
CONCLUSION
Whilst I have concluded that each particular circumstance to which Ms Huda referred is insufficient to warrant a re-opening of litigation into X’s best interests, I am also satisfied that considering those matters cumulatively results in the same conclusion.
I do not accept Ms Huda’s submission that taking the issues at their highest justifies a new hearing. Mr Yasin’s re-marriage and any violence between him and his wife were not the subject of complaint by X to Mr C. Issues around extra-curricular activities are not resolved on the current application before the Court, and the solution proposed orally by Ms Huda creates further difficulties in terms of multiplying changeovers between the parties and creating uncertainty around when any makeup time could occur. The relief now sought for international travel is not articulated in a form capable of adjudication consistent with authority. I also do not accept that the principal issue, identified by Mr C as the parties’ conflict, will be ameliorated or even reduced by further litigation between them.
X’s best interests in not being the subject of repeated litigation between her parents is not outweighed by other considerations. Ms Huda’s application is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 23 October 2023