Ismat & Iqbal

[2021] FedCFamC2F 148

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

Ismat & Iqbal [2021] FedCFamC2F 148

File number(s):	PAC 421 of 2021
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	8 October 2021
Catchwords:	FAMILY LAW – interim parenting – short form reasons – young children – best interest of children – children to live with the mother – children to spend time with the father
Legislation:	Family Law Act 1975 (Cth), s 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346
Division:	Division 2 Family Law
Number of paragraphs:	27
Date of hearing:	6 October 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Elachkar
Solicitor for the Applicant:	Edgeworth Legal
Appearing for the Respondent:	Mr Zarb
Solicitor for the Respondent:	Vaughan Zarb & Co

ORDERS

PAC 421 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ISMAT Applicant
AND:	MS IQBAL Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	8 OCTOBER 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

(1)The parents shall have equal shared parental responsibility for X born in 2011, Y born in 2015 and Z born in 2017 (“the children”).

(2)The children shall live with the mother.

(3)The children shall spend time with the father as follows:

(a)Each Wednesday from after school or 3.30pm to 7pm;

(b)Each week from 9am on Saturday to 9am on Sunday, concluding on Sunday 2 January 2022;

(c)Commencing on Saturday 8 January 2022 and each alternate weekend thereafter, from 9am on Saturday to 5pm Sunday;

(d)Commencing on Saturday 5 March 2022 and each alternate weekend thereafter, from 9am on Saturday to before school or 9am on Monday;

(e)During the school holidays at the end of Term 1 in 2022, from the commencement of the school holidays for a period of 4 days concluding at 6pm on the fourth day of the school holidays.

(f)During the school holidays at the end of Term 2 in 2022, from the commencement of the school holidays for a period of 6 days concluding at 6pm on the sixth day of the school holidays.

(g)During the school holidays at the end of Term 3 in 2022, from the commencement of the school holidays to 6pm on the middle Sunday of the school holidays; and

(h)At all other times as agreed to between the parents in writing.  

(4)Orders 3(a) to (d) above are suspended during the school holiday periods at the end of Terms 1, 2 and 3 in 2022.

(5)For the purposes of orders 3(e) to (g) above, the school holidays are defined by reference to the NSW government gazetted school holidays for public schools in NSW unless otherwise agreed by the parents in writing.

(6)On the days the children attend school or pre-school, the father shall collect the children from their school or pre-school at the commencement of the children’s time with the father or otherwise from the mother’s residence, and the mother shall collect the children from their school or pre-school on the days they attend school or pre-school or otherwise from the father’s residence at the conclusion of the children’s time with the father unless otherwise agreed by the parents in writing.

(7)Each parent shall ensure that the children attend any extra-curricular activities in which the children are enrolled, in which the children may from time to time participate and which occur at times when the children are in the care of that parent.

(8)Pursuant to Section 13C (1) b of the Family Law Act1975 the parties shall, before the next Court event, attend mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties or failing agreement on the application of either party as nominated by the President or other office bearer of one of the following:

§Family Relationships;

§Australian Institute of Family Law Arbitrators and Mediators; and

§Law Society of NSW Mediation Unit.

(9)The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the Family Dispute Resolution Practitioner not less than 7 days prior to the mediation.

(10)Forthwith upon a Family Dispute Resolution Practitioner being agreed or nominated then each party shall:

(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;

(b)Pay one half of all fees charged by the practitioner; and

(c)Attend at such times, dates and places necessary to complete mediation.

(11)The matter is listed for directions at 10am on 17 February 2022.

(12)The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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 Ismat & Iqbal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDE OBRADOVIC:

1. These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth) (“the Act”) in respect of competing interim parenting applications.

2. The issue before the Court is what time the three children of the parties, who are aged 10, 5 and 3, are to spend with their father.

3. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.

4. Even in such constrained circumstances, the Court is still required to determine the applications before it.

5. The father’s case is that the children should commence spending time with him each alternate weekend from after school on Friday to Sunday afternoon immediately, with no lead up time.

6. The mother’s case is that the children should commence spending overnight time with the father in 3 months’ time, and then only for one night per week.

7. The parties appear to agree as to the following:

   a.The father was born on in 1978.

   b.The mother was born in 1983.

   c.The parties married in 2002.

   d.The parties have three children together:

   i.X born in 2011;

   ii.Y born in 2015; and

   iii.Z born in 2017.

   e.The parties separated in 2019.

   f.At separation, the mother remained living with the children in the former matrimonial home.

   g.Between the date of separation and 2021, the children spent limited time with the father.

   h.In February 2021, the father commenced parenting proceedings.

   i.In March 2021, the parties consented to interim orders for the children to live with the mother and spend time with the father each Saturday from 9am to 4pm. The children have been spending time with the father in accordance with those orders.

   j.The parties are now divorced.

   k.The father has re-partnered and has a child of that relationship, who is now approximately 11 months old.

8. The father refers to his new partner as his “wife”. He says that he “remarried” in 2019. Given that the evidence in the father’s case is that the parties were divorced only in 2021, it is difficult to understand how he has legally married another person while still married to the mother.

9. The parties and the oldest child, attended a Child Inclusive Conference on 20 August 2021. Relevantly, the memorandum to the Court states as follows:

   a.At paragraph 6:

   Ms Iqbal said there have been “a couple of incidences” where she and Mr Ismat had pushed her and an incident where Mr Ismat hit her and pulled on her arm.  Ms Iqbal said Mr Ismat had been verbally abusive towards her, including putting her down, swearing at her and calling her names.  She said she is fearful of him.

   b.At paragraph 9:

   Ms Iqbal raised no concerns about Mr Ismat say to day care of the children since the interim orders had commenced. Ms Iqbal said she had taken X to a psychologist because she was sensitive to the parental conflict and had witnessed Mr Ismat verbally abuse her

   c.At paragraph 15:

   Ms Iqbal said that it is positive that during the spend time visits Mr Ismat takes responsibility for the care of the children and does not leave this to his wife.  She said that he does have a tendency to spoil the children and does not focus on their education and this is why the children should not spend overnight time with Mr Ismat on school nights.  Ms Iqbal said that despite the fact that the children have not raised any concerns about their stepmother, she does not want her collecting or dropping the children to school.

   d.At paragraph 24:

   Ms Iqbal said that the children love their father, declaring, “They have the best relationship with their dad and their dad will give them the best.”  She stated that the children also “adore” their paternal half-sibling.  Ms Iqbal said that her proposal will allow the children to see their father each week but not interfere with two key activities that the children enjoy, being Friday night dinners with the maternal extended family and sports camp on Sundays (she noted Sports camp goes longer on any Sunday that they have an excursion).  Ms Iqbal said she proposes Mr Ismat returned the children to her care on the Sunday by 9 AM sit she can get them into their Sports camp’s uniform and take them.  Ms Iqbal said the children should only spend overnight time with Mr Ismat if he has a bed for each child and also that, as the children get older, there can be a separate boy’s room and girl’s room.

   Court’s Determination

10. The submission on behalf of the mother made at the interim hearing was that there was no risk to the children arising out of any allegations of family violence. Concerns were raised on her behalf that there was little information about the father’s living arrangements and as such the Court could not be certain that they were appropriate. Such concerns are not supported by any objective evidence.

11. The mother’s position is that until she and the children have moved to a new home (which is presumably in three months’ time although there is no evidence about it) then and only then is it appropriate for the children to start spending overnight time with the father. The reason for this was said to be that it would be too unsettling for the children to do otherwise.

12. This argument is illogical. If anything, it would be more unsettling for the children to have to adapt to a new home and at the same time to adapt to spending overnight time with the father. If the overnight time was to commence immediately, as supported by the evidence of the family consultant, then the children would have the benefit of settling into a routine of overnight time with the father prior to having to move their primary residence.

13. It was submitted on behalf of the mother that it would be for the mother to determine how the children’s time with the father was progressing and if things were going well then their time could be increased to two nights per fortnight, but consecutive.  While the mother is the children’s primary care giver, the father is also the children’s parent, his views and opinions about the children are relevant. In circumstances where the matter is before the Court, it is for the Court to determine what is in the children’s best interests based on the evidence.

14. The father’s affidavit is rather unfortunately, filled with criticisms of the mother and her capacity to foster and encourage a relationship between the children and the father. The parties are at odds in terms of the evidence about these matters. The mother says that the father did not indicate a wish to spend time with the children for some time in 2019, while the father says that the mother did not agree to him spending time with the children. It is interesting from the Court’s perspective that it took the father over 12 months to commence proceedings while being critical of the mother for not facilitating a relationship between him and the children.

15. The recommendations and/or opinions of the family consultant are somewhat ambiguous. At paragraph 27 of the memorandum to Court, the family consultant opined as follows:

    Based on the information available to this assessment there does not appear to be any reason why the children should not commence overnight time with their father.  From a developmental perspective, after a period of three months of one night per week the children would likely be able to progress to two consecutive overnights with their father without any difficulty, should this be practicable.  Ms Iqbal should reassure the children that she will not be distressed about them spending overnight time with their father, even on extended school holiday periods.  Even though he is of a young age Z would likely be able to spend a little more school holiday time with his father prior to him commencing formal schooling than the amount proposed by Ms Iqbal.  Consideration could be given to him spending at least a three night block in each fortnight period of school holidays and more if he becomes comfortable. 

16. It is unclear whether the recommendation/opinion is for the children in three months’ time to go to two consecutive nights per week or two consecutive nights in some other arrangement. Certainly, if the children are spending one night per week with the father then a move to two consecutive nights per fortnight is not an increase in time per se, rather it is a different regime of spending time.

17. It is the Court’s determination, having regard to all of the evidence that it is in the children’s best interest that they commence spending overnight time with the father immediately, and then progress to spending two consecutive nights per fortnight with the father, in a staged process of longer day time with one overnight, and then two overnights. Noting that three months from the date of the orders takes the parties to early January 2022, that the mother has indicated that she and the children will be moving shortly, that the new school year will commence at the end of January in 2022, the approach taken by the Court will allow the children a slightly longer adjustment period of progressing to two overnights than perhaps recommended by the family consultant.

18. On the evidence, Friday night dinners are an important occasion for the children involving the maternal extended family, and something which the children (in particularly X) enjoy attending. Rather than time with the father commencing on a Friday after school and concluding on a Sunday afternoon, it is more appropriate that time commence on a Saturday morning and conclude on the Monday morning before school, thus giving the children the opportunity of two consecutive nights with their father but also letting them enjoy the benefit of the Friday dinners with the extended maternal family.

19. Given the children’s ages and developmental needs, it is also in their best interest that they spend time with the father once a week after school. This will give them the opportunity of having the father involved in their school life and associated activities. Such an order is also practical, with the father being personally available to spend time with the children each afternoon from after school.

20. In terms of the children’s activities, the father proposes that each of the parties when the children are in their care, take the children to their extra-curricular activities. Such an order would ensure that the children keep attending Sports camp on Sundays, and that they have the benefit of the father’s involvement in that activity.

21. As for the school holidays, Z and Y are still very young and extended periods of time away from their primary carer are not assessed to be in their best interest at present. The father proposes that the children spend time with him on a week about basis during the school holidays at the end of term 4 in 2021. It is simply too soon for that. The Court does not accept the submission made on behalf of the father that the children will be used to spending overnight time with the father by then such that they would not have any difficulty in being separated from the mother for a week at a time. In any event, given the orders that the Court has deemed appropriate about overnight time and that the children will not be spending two consecutive nights with the father for a number of months, it is not appropriate that there be any block time for the children at the end of term 4 in 2021.

22. For school holidays in 2022, the children will spend time with the father for limited block periods, increasing to half the school holidays by the end of term 3. The school holidays at the end of term 4 in 2022 are too far into the future and there is little to no evidence before the Court presently as to what may be in the children’s best interest more than 12 months from now.

23. As conceded by the legal representative for the mother, there is no evidence which might lead the Court to find that the presumption of equal shared parental responsibility has been rebutted. It is appropriate for an order to be made for equal shared parental responsibility. While such an order is not determinative of the issue at final hearing, it is important for the children to presently understand that their father is an important person in their lives and that he, as much as the mother, is able to have a say in what is best for them in the long term.

24. It will be important for these children that they know they have the support of both of their parents in having a relationship with their father and that spending time with the father is not going to cause the mother distress.

25. It will also be important for these children that they know that their father is not undermining of their mother, that he is respectful of her and that he recognises her important role as a parent and her capacity to encourage the children’s relationship with him.

26. Where no submissions were made in respect of orders sought about specific issues, those orders have not been made. This includes the orders for restraint, provision of information and similar contained in the father’s case outline document.

    Conclusion

27. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:  

Dated:  8 October 2021