Kamali & Saad
[2022] FedCFamC2F 749
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamali & Saad [2022] FedCFamC2F 749
File number(s): MLC 9053 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – final consent orders – parenting orders – parents’ agreement a gift to their children – discontinuance of property proceedings – removal of a caveat – use of an interpreter. Legislation: Family Law Act 1975 (Cth) ss 43, 79. Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 10 February 2022 Place: Melbourne Solicitor for the Applicant: Ms Hepworth Solicitor for the Respondent: Mr Pianta ORDERS
MLC 9053 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAMALI
Applicant
AND: MR SAAD
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
10 FEBRUARY 2022
OTHER MATTERS:
A.The Wife has failed to file and serve her Court materials required under Court Order 18 of Interim Court Orders made 11 February 2021.
B.The Wife has failed to pay the setting down for trial fee as required by Court Order 15 of Interim Court Orders made 11 February 2021.
C.The Wife has filed a Notice of Discontinuance with respect to her application for final financial and property orders on 1 February 2022.
THE COURT ORDERS BY CONSENT THAT:
1.All previous Orders in the proceeding be revoked and/or discharged.
Final Parenting
2.The Mother and the Father have equal shared parental responsibility for X born in 2010 (“X”) and Y born in 2012 (“Y”) (“the children”) save and except the Mother and Father be permitted to travel with either child or both children within Australia for the purpose of holidays in their scheduled holiday time without the permission of the other parent and are required to:
(a)Consult with each other promptly in relation to any major long-term issues concerning the children;
(b)Use their best endeavours to reach consensus on any major long-term issues concerning the children;
3.The children live with the Mother.
4.The children spend time with and communicate with the Father as follows:
(a)Each weekend from 5.00pm Friday to 5.00pm Sunday;
(b)Over the school term and summer holidays at times to be agreed but failing agreement the children spend time with the Father the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years;
(c)Otherwise, at all other times as agreed in writing between the parties.
5.All changeovers of the children are to take place at either their schools, KFC, B Street, Suburb C or other place as agreed to by the parties.
6.The Father’s care for the children be suspended on Mother’s Day each year from 9.00am to 5.00pm.
7.The Father’s care for the X be suspended on the Country D Orthodox Easter Sunday weekend from Friday at 5.00pm until Sunday at 5.00pm.
8.The parent who is at the time caring for the child/children make day to day decisions with regard to their health and medical needs with consultation from the other parent when practicable, but otherwise notify the other parent by telephone as soon as practicable in the event that either of the children suffers significant injury, illness or requires specialist medical care or treatment whilst in their respective care or any significant issue that relates to their education or welfare.
9.Each parent be at liberty to telephone or communicate (via video telephone conference, e-mail, text and the like) with the children when the children are not in their care, no more than once per day.
10.Each parent notifies the other of their contact details including residential address, e-mail address and mobile telephone number within 48 hours of any change.
11.Neither parent be permitted to take the children or either of them overseas without the written agreement of the other parent or a Court order.
12.The Mother do all acts and things necessary to provide the Father with information and documents, including contact details, to allow the separate involvement of the Father in the children’s medical, health, schooling and developmental progress including but not limited to NDIS records, assessments and care plans, school information and records and to do so when such documents or information is created or comes to hand.
13.The Mother do all acts and things necessary to provide Y’s NDIS lead professionals with a copy of the Family Report dated 17 December 2021.
14.The parties are at liberty to:
(a)Provide a copy of these orders to each child’s school/educational facility, doctor, psychologist or any allied health practitioner upon whom the children may attend from time to time;
(b)Contact any child’s school/educational facility to obtain newsletters, reports, educational update or assessment, photo order forms and other like documents at their own expense;
(c)Attend any parent teacher interviews, sports days, concerts or other like events to which parents are ordinarily invited; and
(d)Contact any child’s doctor, psychologist or any allied health practitioner upon whom the children may attend from time to time to obtain any medical records, assessments or information.
15.The Mother and Father be and are restrained from discussing the contents of or the information the children have provided in the Family Report dated 17 December 2021, with the children.
Final Property
16.That the wife do all acts and things and sign all documents necessary to withdraw caveat … lodged on her behalf over the property at E Street, Suburb F in the State of Victoria, more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“E Street, Suburb F”) within 7 days and at her expense.
17.All extant applications and responses otherwise be dismissed.
AND THE COURT NOTES THAT:
A.The Mother will do all such acts and things necessary to obtain a translation of these Orders for her individual reference.
B.The Mother will obtain counselling for X at his school to support his emotional needs, as required.
C.Pursuant to ss65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kamali & Saad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment made ex tempore.
The matter of Ms Kamali (‘the Mother’) and Mr Saad (‘the Father’) comes before me for a compliance check, as the matter had been fixed for final hearing on 21 February 2022. Each of the parties are represented before me, and I am grateful to their lawyers for assisting their clients and the Court resolve the matter.
On this compliance check, I was provided with a signed minute of a consent order. With the parties' agreement, I will change what would have been notation B: the Mother and the Father will not discuss the contents of or the information the children have provided in the family report dated 17 December 2021 with the children. By consent, that notation will now be a Court order, and will read: the Mother and the Father be and are restrained from discussing the contents of or the information the children have provided in the family report dated 17 December 2021 with the children. I note that that notation and now order is consistent with the recommendation in the family report.
The Mother has been assisted this day by the services of an interpreter, Mr G, and I am grateful to him for his assistance. The Mother's circumstances are that she understands some English, but nonetheless needs the assistance of an interpreter, and the Court has made that available to her today. The Mother has only been able to attend via telephone, and the Father has attended via video link from his solicitor's office.
The Mother is aged 37, and the Father is aged 35. They have two children, one of whom has some special needs. The parties married in 2009 and separated in 2016. They were divorced on 26 August 2019. The Mother issued these proceedings in May 2020, and the matter has been before the Court on a number of occasions. A family report was ordered to be prepared, was prepared on 29 November 2021, and released to the parties in December 2021.
Parenting
It is clear that the parties have had some discussions via their lawyers as to how they could compromise and resolve the proceedings. The arrangements in place since separation have been that, by and large, the Father has had the children in his care each weekend from Friday evening until Sunday evening, and the orders are that that arrangement will continue. In addition, the children will spend half of the school holidays with each of their parents, and there are orders for special occasions.
The parties were born overseas, and as I understand it, the Mother's religion has changed to embrace Christianity post-separation, and the Father has retained his Muslim religion. The parties are to be commended for having the courage and maturity to sort out between themselves, with the assistance of their lawyers, their children's living arrangements, notwithstanding the potential difficulty that a change of religion would have caused other families. So I do want to note the courage and maturity and concentration on the best interests of the children that both parties have been able to do.
I have read the family report, and I have read the proposed orders, and I am satisfied that the orders proposed are in the best interests of the children. The parties have experienced family lawyers who have assisted them negotiate that matter and the parties have agreed on those arrangements. This very much compels me to find the orders are in the children's best interests.
The parents have provided to the children (apart from their love and care) the gift of the children now being able to face anyone who inquires, "How come you live this way, not some other way, like some other kid in the class?" Each of the children can, if they wish to, tell whoever is inquiring the reality and the simple answer that this is what my parents agreed. The fact that the parents agreed on these living arrangements is a gift to the children, and will be of great comfort to them.
Property
In regard to the property proceedings, I have been told about the parties’ modest property pool. I am told that the former matrimonial home was bought as a house and land package financed entirely by debt. The Father has kept that home and kept up the mortgage payments and outgoings of rates and insurances of the property. By the circumstances of rising property prices he now has a modest equity in the property. This is significant.
The Mother has chosen to discontinue property proceedings, with the benefit of legal advice being interpreted to her from an appropriate interpreter. The Mother is also consenting to an order that she remove the caveat lodged on the Father's property. The parties' lawyers have told me that they agree that order is a final property order. In these circumstances, I regard that order as a final property order.
I raised with the Mother's solicitor whether the order relating to the caveat was, in fact, a final property order. The Mother's solicitor agreed that, in fact, it was. The parties have agreed that there should not be any property adjustment order, and have agreed that the Mother will withdraw her caveat. Placing considerable weight on what the Mother has agreed to or represented, I find that it is just and equitable to make that order pursuant to section 79(2) of the Family Law Act 1975 (Cth) (‘the Act’).
The parties separated in 2016 and it is not quite six years later that I am dealing with this matter. The Mother's solicitor has been careful to ascertain instructions from her client. Whether or not I would have made any property order without the consent of the parties is not something I will determine.
I also note the parties were divorced on 26 August 2019, and any further proceedings would be unable to be instituted without leave of the Court, pursuant to section 44(3) of the Act.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 June 2022
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