Jamal and Akbar - [2017] FamCA 586

FAMILY COURT OF AUSTRALIA

JAMAL & AKBAR

[2017] FamCA 586

FAMILY LAW – CHILDREN – With whom child lives – With whom child spends time – Parental responsibility – Best interests of the child – Where mother has belief that child sexually abused by the father however a finding of sexual abuse is unable to be sustained on the evidence – Where allegations by mother of history of family violence – Where issues as to father’s mental health - Where father has not spent time with the child for a lengthy period of time –– Concerns in relation to the maternal grandmother – Where need for therapeutic intervention to be put in place - Where it is in the child’s best interests that time with the father commence supervised and progress to unsupervised

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
M & M (1988) FLC 91-979
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

Tethys & Tethys [2014] FamCAFC 125

APPLICANT:

Mr Jamal

RESPONDENT:

Ms Akbar

INDEPENDENT CHILDREN’S LAWYER:

Mr Christaki

FILE NUMBER:

PAC

3863

2013

DATE DELIVERED:

11 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

30 November 2016, 1 December 2016, 24, 25 and 29 May 2017 and 16 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beck

SOLICITOR FOR THE APPLICANT:

N A Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Breeze

SOLICITOR FOR THE RESPONDENT:

Gonzalez & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Christaki of Legal Aid NSW Suburb F Family Law

Orders

That all previous parenting orders in relation to the child B born … 2008 be discharged.
That the mother and father have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father as follows:
(a)for a period of 12 months from the date of commencement of therapeutic intervention with Dr C at such times and locations as recommended and directed by Dr C with such time to be in her presence and in the presence of such other persons at her discretion;
(b)that thereafter the child spend time with the father for a period of not less than two hours or such longer period at times that the parties shall agree in writing and on a day to be agreed and in default of agreement in writing each alternate Sunday from 12.00 noon to 2.00 pm for a period of six months supervised by Ms D and should Ms D be unavailable to supervise contact on occasions then N Contact Service or such other supervising organisation as may be agreed between the mother and father in writing;
(c)that thereafter the child spend time with the father for a period of not less than four hours at times and on a day to be agreed and…

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.

Continue reading Jamal and Akbar

Details

AGLC: Jamal and Akbar [2017] FamCA 586
Case: [2017] FamCA 586
Decision Date: 11 August 2017

CaseChat Overview and Summary

This matter concerned parenting orders for the child B, born in 2008. The dispute involved the mother and father, and the court was required to determine the future parenting arrangements for the child.

The court was tasked with determining the appropriate parenting orders, including the discharge of previous orders, the allocation of parental responsibility, the child's living arrangements, and the specific arrangements for the child to spend time with each parent. Further issues included the supervision of contact, changeover procedures, provisions for make-up time, communication between parents regarding the child's welfare and education, and the involvement of therapeutic professionals. The court also had to consider orders restraining certain behaviours between the parents and addressing any disclosures made by the child.

Foster J discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The child was ordered to live with the mother, with specific, phased arrangements for the child to spend time with the father. These arrangements commenced with therapeutic intervention and supervision, gradually transitioning to unsupervised time. The orders also mandated the parents' attendance at therapeutic counselling, prohibited denigration of each other in the child's presence, and restricted physical discipline. Provisions were made for information sharing between parents and professionals, and for the child's attendance upon therapeutic counselling. The father was also ordered to continue attending psychological and psychiatric appointments at his own expense. All other applications before the court were dismissed.

Orders

Orders of the court

That all previous parenting orders in relation to the child B born … 2008 be discharged.

That the mother and father have equal shared parental responsibility for the child.

That the child live with the mother.

That the child spend time with the father as follows:

(a) for a period of 12 months from the date of commencement of therapeutic intervention with Dr C at such times and locations as recommended and directed by Dr C with such time to be in her presence and in the presence of such other persons at her discretion;

(b) that thereafter the child spend time with the father for a period of not less than two hours or such longer period at times that the parties shall agree in writing and on a day to be agreed and in default of agreement in writing each alternate Sunday from 12.00 noon to 2.00 pm for a period of six months supervised by Ms D and should Ms D be unavailable to supervise contact on occasions then N Contact Service or such other supervising organisation as may be agreed between the mother and father in writing;

(c) that thereafter the child spend time with the father for a period of not less than four hours at times and on a day to be agreed and in default of agreement each alternate Sunday from 12.00 noon to 4.00 pm for a period of six months supervised by Ms D and should Ms D be unavailable to supervise contact on occasions then N Contact Service or such other supervising organisation as may be agreed between the mother and father in writing;

(d) that thereafter the child spend time with the father for a period of not less than four hours at times and on a day to be agreed and in default of agreement from 12.00 noon to 4.00 pm each alternate Sunday for a period of six months such time to occur in a public place and to be unsupervised;

(e) that thereafter the child spend time with the father for a period of not less than eight hours at times and on a day to be agreed and in default of agreement from 9.00 am to 5.00 pm each alternate Sunday;

(f) otherwise, for such other periods or times as may be agreed between the parties in writing.

That the parties within seven days shall contact and do all things and sign all documents necessary as are required by N Contact Service or any other agreed registered supervising agency for the purposes of providing supervision as necessary and provided for in orders above, and

(a) That the parties shall pay equally half the costs, including any cancellation or transport costs of N Contact Service or any other agreed registered supervising agency for the purposes of providing supervision as necessary and provided for in orders above;

(b) That the parties comply with all rules, regulations, requirements and directions of N Contact Service or any other agreed registered supervising agency.

That for the purposes of changeover provided for in Order (4) (a), (b) and (c) above the mother or her nominee shall deliver the child to a location as agreed between the parties in writing or as directed by Dr C, N Contact Service or other agreed registered supervising agency or Ms D at the commencement of the time the child is to spend with the father in accordance with these orders and the mother or her nominee shall collect the child from the same location at the conclusion of that time and that for the purposes of changeovers provided for in Order (4)(d), (e) and (f) the mother or her nominee shall deliver the child to the father and the father shall collect the child from the mother at E Park, Suburb F or such other place as may be agreed between the parties in writing at the commencement of each period the child is to spend with the father and the mother or her nominee shall collect the child from the father at the same location or such other location as may be agreed upon between the parties in writing at the conclusion of such period.

That in the event that the mother is unable to comply with changeovers provided for in Order (4)(a), (b) and (c) then she shall as soon as practicable and at her cost make appropriate arrangements for the transport of the child to or from spending time with the father with Ms D, N Contact Service or other agreed registered supervising agency.

That in the event that the child is not available to spend time with the father in accordance with these orders due to illness, the mother shall:

(a) notify the father as soon as practicable that the child is unable to attend to spend time with the father; and

(b) within 24 hours of the time that the child was to commence time with the father provide to the father a medical certificate from a registered medical practitioner indicating the nature of the child’s illness and including confirmation that in that medical practitioner’s opinion the child was medically unfit to attend to spend time with the father provided for by these orders; and

(c) make the child available to spend make‑up time with the father, for an equivalent amount of time to that which was missed within the next four weeks with such time to be organised with Dr C, Ms D, N Contact Service, other agreed registered supervising agency or the father as applicable.

That in the event that the mother takes the child on a holiday or trip for any purpose during the time the child is otherwise meant to be spending time with the father, then the mother shall make the child available to spend make‑up time with the father for an equivalent amount of time to that which is being missed within the next four weeks with such time to be organised with Dr C, Ms D, N Contact Service, other agreed registered supervising agency or the father as applicable.

10.

That when the child is to spend unsupervised time with the father provided for in Order (4)(d), (e) and (f) then for the purposes of make‑up time provided for in Order (8)(c) the mother shall nominate in writing to the father three periods of make‑up time within seven days of the conclusion of the time missed and the father shall choose one of those periods in writing within a further seven days.

11.

That the mother and father shall keep the other informed at all times of their residential address, landline and mobile contact telephone numbers and provide notice of any change in writing within 48 hours of such change provided that the parties shall use the landline and or mobile phone for the purpose of implementing these orders and as to the care and welfare of the child only.

12.

That the mother and father shall keep each other informed of the names and addresses of any carers and/or third parties that from time to time may care for the child including treating medical or other health practitioners that treat the child and authorise that practitioner to provide to the other parent information they are lawfully able to provide about the child.

13.

That the mother and father shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child and this order is sufficient authorisation for any treating medical practitioner to release the child’s medical information to the mother and/or father.

14.

That the mother and father shall inform the other of any medical emergency which requires the child’s attendance at a doctor or medical facility when the child is in their care as soon as practicable or otherwise within 24 hours of such event and this order is sufficient authorisation for any treating medical practitioner to release the child’s medical information to the mother and/or the father.

15.

That the mother and father authorise by this order the schools attended by the child from time to time to give each parent information about the child’s educational progress, medical emergencies and other school related activities and supply them with copies of all circulars, newsletters, letters, notices and documents, school reports, photographs, certificates and awards obtained by the child at the cost of the requesting parent.

16.

That the mother and father shall be at liberty to attend or visit the school attended by the child from time to time for events, activities or functions which are routinely attended by parents.

17.

That the mother and father shall be at liberty to attend all sporting and extra-curricular activities in which the child is involved which are routinely attended by parents.

18.

That the child shall continue to attend upon Dr C for the purpose of therapeutic counselling as she directs and both the mother and father shall facilitate the child’s attendance upon Dr C as directed by her.

19.

That the mother and father shall attend upon Dr C as she directs for the purpose of therapeutic counselling and in discussing appropriate strategies in both households to address the level of conflict between the parents and/or other family members and both parents shall comply with all reasonable requests of and referrals by Dr C in relation to themselves and as to the child.

20.

That the mother and the father and the Independent Children’s Lawyer are permitted to provide a copy of the Family Report of Dr G and a copy of these orders to any of their or the child’s treating mental health and allied professionals and counsellors.

21.

That the mother and father are restrained from denigrating the other directly or in the presence of the child or allowing any third party to do so whilst the child is in their care.

22.

That the mother and father are restrained from physically disciplining the child or allowing any third party to physically discipline the child whilst the child is in their care.

23.

That the mother and father are restrained from discussing any issues regarding sexual abuse allegations or regarding conflict and disagreement between the parties in these proceedings or any other proceedings with the child unless as otherwise recommended by Dr C.

24.

That the mother and the father do all acts and things necessary to prevent and stop any other person or persons from raising or discussing issues in the child’s presence regarding the sexual abuse allegations and/or regarding conflict or disagreements between the parties in these proceedings or any other proceedings save and except as recommended by Dr C or for the purpose of investigations being conducted by JIRT or the Department of Family and Community Services.

25.

That if the child makes further disclosures about sexual intrusion or other concerning behaviour, the parent to whom disclosure is made shall do the following acts and things:

(a) show concern;

(b) deal with the immediate circumstance;

(d) refrain from either reaffirming or dismissing the disclosure or questioning the child or seeking collaboration about the said disclosure;

(e) as soon as circumstances permit and in the absence of the child make a note of exactly what the child said or did.

26.

That the mother and father are to do all things necessary to authorise Dr C and the parties and the child’s treating mental health, allied professionals and counsellors to be able to exchange information in relation to the parties and the child in pursuit of assisting each in the roles they must fulfil in relation to the parents and the child in this matter.

27.

That the father shall continue to attend all appointments with and follow all advice of:

(a) Dr H or such other psychologist as his general practitioner may refer him to;

(b) Dr J or such other psychiatrist as his general practitioner may refer him to;

(c) including following all recommendations as to medication and treatment and including the filling of all prescriptions for prescribed medications at his own expense.

28.

That the mother shall do all things necessary to make the child available to have these orders explained to the child by the Independent Children’s Lawyer and by Dr C at such time and place as arranged by the Independent Children’s Lawyer in consultation with Dr C.

29.

That for the purposes of these orders where notice in writing or advice in writing is to be provided such writing shall include SMS or email communication.

30.

That, otherwise, all applications before the Court be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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