ISMAT & ATTIA

[2019] FCCA 3504

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISMAT & ATTIA [2019] FCCA 3504

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCA 240

Banks & Banks [2015] FamCAFC 36

Applicant: MR ISMAT

Respondent: MS ATTIA

File Number: PAC 1642 of 2019

Judgment of: Judge Newbrun

Hearing date: 28 November 2019

Date of Last Submission: 28 November 2019

Delivered at: Parramatta

Delivered on: 4 December 2019

REPRESENTATION

Solicitors for the Applicant: Ms Shilson-Josling

Solicitors for the Respondent: Ms Khalil

Solicitors for the Independent Children’s Lawyer Mr Layson

ORDERS

1. The children, X born … 2015 and Y born … 2017, live with the mother.

2. The children spend time with the father as follows:

   (a)For a minimum of 2 hours per fortnight at the A Contact Centre or such other contact service as agreed between the parties in writing at times and dates as appointed by the contact service, and such time is to be implemented by the mother delivering and collecting the children to and from the contact service at the commencement and conclusion of the father’s time.

3. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at times/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

4. The Family Report to deal with the following matters:

   (a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.

   (b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;

   (c)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:

   (i)either of the parents: or

   (ii)any other child, or significant person, with whom the child(ren) has/have been living.

   (d)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.

   (f)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.

5. Within 7 days of these Orders the parties must do all acts and things to enrol in a recognised post separation program such as Keeping Kids in Mind through CatholicCare, Parents not Partners through Interrelate or Parenting After Separation through Relationships Australia to assist them with reducing conflict and developing communication skills.

6. To facilitate the preceding order, each party must:

   (a)Attend at such times, dates and places as may be advised;

   (b)Pay such fees as may be charged;

   (c)Provide certifications of completion to the other party and the Independent Children’s Lawyer within 48 hours of receipt.

7. The proceedings are adjourned for mention to 18 September 2020 at 9:30am following the release of the Family Report.

IT IS NOTED that publication of this judgment under the pseudonym Ismat & Attia is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1642 of 2019

MR ISMAT

Applicant

And

MS ATTIA

Respondent

REASONS FOR JUDGMENT

1. These Reasons relate to an interim hearing held on 27 November 2019, in relation to the children X born on … 2015 and Y born … 2017.

2. On 1 August 2019, being the first return date of these parenting proceedings instituted by the father, the Court made an interim order by consent that without prejudice to the mother’s application before the Court (see her proposed parenting order in her Response that the children spend no time with the father), the parties shall within 7 days from the date of these orders contact the A Contact Centre (Suburb B) for the purpose of suitability of an intake assessment for supervised time.

Proposals and material relied upon

1. The mother’s interim parenting proposals were contained in a short Minute of Order attached to her Case Outline; she sought orders, inter alia, that the mother have sole parental responsibility for the children; that the children live with the mother; and that the children spend no time with the father.

2. The mother relied upon the documents referred to on page 1 in her Case Outline.

3. The father sought interim parenting orders as set out in his Minute of Order attached to his case outline; that the parents have equal shared parental responsibility for the children; that the children live with the mother; and that the children spend time with the father at C Day Care Suburb D, supervised by either the paternal grandmother or the paternal uncle, or other supervisors as agreed between the parties in writing, pending the commencement of supervised time at the A Contact Centre.

4. The father relied upon the documents referred to on page 1 of his Case Outline.

5. The ICL relied upon his case outline, and his proposed orders were set out in his case outline at pages 3-4.  His proposed orders, in relation to the children spending time with the father, were quite similar to the father’s proposed orders.

Agreed facts unless otherwise stated

1. The mother is aged almost 34 years of age.  The father is aged 42 years.

2. The parties hail from Iraq.  The mother came to Australia in 2009.  The father came to Australia in 2015.

3. The parties commenced cohabitation in about … 2015.  The parties separated in early April 2018.

4. The father has not seen or spend time with the children since early April 2018.

Legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

5. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

Meaningful relationship primary consideration

1. The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship.  It would appear that the mother has been the children’s primary carer from birth to date.

2. The children do not presently enjoy a meaningful relationship with the father having not spent time or seen him since separation in early April 2018.

3. Should the children begin to spend supervised time with the father at the A Contact Centre, there is a reasonable prospect that the children may proceed to develop a meaningful relationship with the father.  On the material before the Court, there is a significant suggestion that the children would benefit from being able to develop a meaningful relationship with the father.

4. At the interim hearing, the father and ICL informed the Court that there was a minimum waiting period of six months before supervised time at the above contact service could begin.  The Court was informed that the parties had done their enrolments with the above contact service and they had been assessed as suitable for supervised time commencing.  The mother’s solicitor informed the Court that there was at least a 4 to 6 months wait in relation to the above contact service.  The Court has not overlooked this waiting period.

Need to protect primary consideration

1. There is an unacceptable risk of harm posed to the children in spending unsupervised time with the father.

2. The Court refers to the serious allegations made by the mother against the father in relation to family violence perpetrated against her by him during the relationship.  The Court has significant concerns in relation to these allegations in the context of the children spending unsupervised time with the father.  The father denied these allegations apart from the family violence incident referred to immediately below.

3. In the Child Dispute Conference memorandum dated 11 November 2019, under the heading “Family violence”, the Family Consultant refers to the father informing the Family Consultant that he hit the mother and threatened her with a knife in the context of an argument.  He reported to the Family Consultant, in this context, that he was charged with assault and using a weapon, and spent 25 days in jail before being released on a good behaviour bond.  He acknowledged that the mother would have been fearful at this time.  The mother states, in this context, that she was fearful for her life in relation to this incident.  She asserted to the family consultant that the father held the knife to her neck, and that one of the children came into the room crying.  She asserted to the family consultant that the father was sufficiently distracted by this so that she was able to break away from him.

4. The mother asserted to the Family Consultant and alleged that there have been several incidents of hitting and choking by the father and she said that verbal abuse was basically continuous.  She expressed concern to the family consultant that the father would denigrate her if he was allowed to spend time with the children.  She told the Family Consultant that if this time was unsupervised, she would have great concerns about the father’s ability to control his temper.  She stated that both children were very active and would want to play and have fun, and she was fearful that the father would slap them and yell at them.  She asserted that the father was not patient and would not talk to or advise the children, preferring to use physical punishment.

5. Further, the Court has concerns in relation to the father’s mental health, in relation to the children spending unsupervised time with the father.

6. The father told the family consultant that he was diagnosed with post-traumatic stress disorder, depression and anxiety by a psychologist, Mr E, at the time of his separation.  He said that he now consults his GP, Dr F regularly and denied use of medication.

7. The Court has had regard and takes into account the report of clinical psychologist Mr E dated 17 September 2018 attached to the father’s Affidavit filed 7 June 2019, whilst acknowledging that that report remains untested.  That report appears to have been prepared by the psychologist for the presiding judge dealing with the father in relation to his assault upon the mother on 2 April 2018.

8. The above report refers to the father being referred by his GP for management of depression, anxiety and post-traumatic stress disorder.  The psychologist stated that it became apparent in his assessment of the father that the father was still suffering from trauma related symptoms associated with his life in Iraq.

9. The report referred to the father looking distressed when recounting some of his memories from Iraq, when discussing, inter alia, the incident with the mother.

10. In the report the psychologist assessed the father’s symptoms.  He referred to the father reporting symptom levels in the clinical range on five of the nine subscales.  He stated that the father’s scores would normally indicate a person currently suffering from distress across a broad range of psychological functioning.

11. The report referred to the father’s depressive and anxiety symptomatology.  In relation to anxiety symptomatology, the psychologist stated that the father’s anxiety seems mostly related past trauma has been exacerbated by his current predicament.

12. The psychologist stated that at the time of the incident (in April 2018) that led to the current criminal charges, the father met the DSM V criteria for a major depressive episode in the severe category, and generalised anxiety disorder, and post-traumatic stress disorder.

13. The psychologist stated that after emigrating to the USA in 2012, the father began to recover from his mental health issues, became calm and relaxed, and was doing well for the next five years.  Unfortunately over the 3 to 4 months leading up to the incident, his mental health issues relapsed in the context of financial difficulties, long work hours, and increasing arguments with the mother.

14. The psychologist stated that on the evening of the incident on 2 April 2018, there was another heated argument between himself and the mother.  He described that, for a short time, he became angry and irrational, believing that the only way to dissuade the mother from further accusations was to scare her.  He slapped the mother with an open hand and then picked up a knife to scare her.

15. The psychologist stated that he believed that the most appropriate way of dealing with the father was the recommended treatment plan set out in the annexure to his report. 

16. That treatment plan provided for:

    a)The father attending the rooms of Mr E on a fortnightly basis for at least three months, and on a monthly basis for a further three months.  (There was no evidence before the Court that the father had attended the rooms of the psychologist for these periods)

    b)The father to be actively involved in therapy and work towards the goals of maintaining gains with mood, learning to better manage anxiety and stress, and to learn alternative ways to cope with any future stressors.

    c)During these 6 months the father is also to attend his GP on a schedule set by the GP to ensure his physical health has maintained, and if medication is indicated that it is properly maintained and monitored.

17. Under the heading “Summary”, the psychologist stated, inter alia, that the father was now receiving the care he needs to address his issues and he strongly believes the father represents no threat to the community for the following reasons:

    a)He shows no signs of antisocial personality disorder

    b)He has no forensic history

    c)He has a solid work history

    d)His history of being a loving, caring husband and father

    e)At the time of his current crime, he was significantly impaired by his mental health

    f)He is now in treatment and if he stays in treatment for the recommended time (Court’s emphasis), it is very unlikely, given the insight he currently shows, he will ever repeat his mistakes (Again, the Court observes that there is no evidence before the Court that the father had undertaken the six months treatment recommended by the psychologist, above)

    g)He seems to be generally remorseful for his actions toward the mother

    h)He is motivated to continue with counselling and begin making positive changes.

18. The Court’s concerns, discussed above, in relation to the children spending unsupervised time with the father, would remain even if the children were to spend time at C Day Care, Suburb D, supervised by the paternal grandmother or the paternal uncle.

19. There is no Affidavit filed and served from the paternal uncle.

20. There is an Affidavit filed and served from the paternal grandmother.  She states that she is aged 62 years.  She states she was born in Iraq and came to Australia in 2009 as a refugee.  She is now an Australian citizen.  She asserts that previously she was very involved in caring for the eldest child, although this is denied by the mother.  The paternal grandmother asserts that she developed a close and loving bond with the youngest child.  She states that she has not spent time with the children since April 2018.  She states her willingness to supervise the children’s time with the father.  She states she is aware of the incident between the parties at the time of separation.  She states her understanding that this was a very serious incident and that the father should not have behaved in this way.  She does not refer to her knowledge of the mother’s other family violence allegations made against the father.  She asserts that she understands the role of supervisor and that if the father behaves in a way that is aggressive, violent “or in any way inappropriate”, when he is spending time with the children, she would stop the children’s time with the father and notify the mother and the relevant authorities.  She understands that she should stay with the children, ensuring that she is able to see the children and hear them at all times when they are spending time with the father.

21. The mother asserts that she does not have a good relationship with the paternal grandmother.  The mother asserts that she does not trust the paternal grandmother at all.

22. In relation to the paternal grandmother potentially supervising the children’s time with the father at C Day Care, the Court has a concern firstly that the paternal grandmother is not aware of the entirety of the mother’s allegations of family violence allegedly perpetrated against her by the father during the relationship, apart from the incident at the time of separation.  Moreover, the Court is concerned that the paternal grandmother, a layperson, would be seeking to supervise the children’s time with the father in circumstances where it is unknown whether the father’s adverse mental health conditions in April 2018 have been adequately treated. 

1. Elaborating, the father had serious mental health conditions at the time of the incident at separation in April 2018; he has not undertaken the six months of treatment with a psychologist as recommended by that psychologist; and there is no up-to-date mental health material from a health professional, such as a psychologist (for example, there is no up-to-date report from Mr E) suggesting that the father’s present mental health is satisfactory and/or that he has received adequate treatment for his adverse mental health conditions that existed, according to Mr E, psychologist, in April 2018.

2. The Court’s concerns, above, can be minimised and addressed by the children spending supervised time at the A Contact Centre.

3. The Court’s concerns above remain, despite the father’s apparent insight into his criminal behaviour at the time of the separation incident, his completion of the Triple P Positive Parenting Program and Keeping Children Safe courses through Uniting, and his attendance in the Diffuse Men Managing Emotions course at CatholicCare.  The Court’s concerns remain because the father’s previously diagnosed adverse mental health remains untreated and, again, there is no up-to-date health professional evidence in relation to the father’s mental health.

4. The mother seeks that the children spend no time with the father.  Again, the Court is of the view, based on the material before the Court, that the children would benefit from being able to develop a meaningful relationship with the father, and that spending supervised time with the father at the contact centre would minimise and address the risk of harm posed to the children in spending unsupervised time with him.

5. The Court gives significant weight to this need to protect primary consideration.

6. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following orders:

7. The children, X born … 2015 and Y born … 2017, live with the mother.

8. The children spend time with the father as follows:

   (a)For a minimum of 2 hours per fortnight at the A Contact Centre or such other contact service as agreed between the parties in writing at times and dates as appointed by the contact service, and such time is to be implemented by the mother delivering and collecting the children to and from the contact service at the commencement and conclusion of the father’s time.

9. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at times/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

10. The Family Report to deal with the following matters:

    (a)Any views expressed by the child(ren) the subject of parenting orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.

    (b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;

    (c)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:

    (i)either of the parents: or

    (ii)any other child, or significant person, with whom the child(ren) has/have been living.

    (d)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.

    (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.

    (f)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.

11. Within 7 days of these Orders the parties must do all acts and things to enrol in a recognised post separation program such as Keeping Kids in Mind through CatholicCare, Parents not Partners through Interrelate or Parenting After Separation through Relationships Australia to assist them with reducing conflict and developing communication skills.

12. To facilitate the preceding order, each party must:

    (a)Attend at such times, dates and places as may be advised;

    (b)Pay such fees as may be charged;

    (c)Provide certifications of completion to the other party and the Independent Children’s Lawyer within 48 hours of receipt.

13. The proceedings are adjourned for mention to 18 September 2020 at 9:30am following the release of the Family Report.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  4 December 2019