Kattan & Nahas

Case [2023] FedCFamC1F 409

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kattan & Nahas [2023] FedCFamC1F 409

File number(s): BRC10442 of 2016
Judgment of: BAUMANN J
Date of judgment: 24 May 2023
Catchwords: FAMILY LAW – Parenting – Whether the children should spend time with the father in Country B where he lives and works – Where the father has not returned to Australia to spend physical time with the children for six years – Where the children have expressed a wish to spend time with the father in Australia, and hold concerns about travelling overseas – Where there are concerns the children would not be returned to Australia – Orders made for the children to spend physical time with the father in Australia  
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA
Cases cited:

Kattan & Nahas [2021] FamCA 461

Vallans & Vallans (2019) 60 Fam LR 193

Division: Division 1 First Instance
Number of paragraphs: 43
Date of last submission/s: 31 October 2021
Date of hearing: 8 October 2021
Place: Brisbane
Solicitor for the Applicant: Litigant in person (via videolink)
Counsel for the Respondent: Ms R Lyons
Solicitor for the Respondent: Sterling Law (Qld)
Counsel for the Independent Children’s Lawyer: Ms D Wardle
Independent Children’s Lawyer: Seth Solicitors

ORDERS

BRC10442 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KATTAN

Applicant
AND:

MS NAHAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

24 MAY 2023

THE COURT ORDERS:

1.That all previous parenting Orders be discharged.

2.That the children, X born 2005, Y born 2010 and Z born 2012 (“the children”) live with the Respondent mother.

3.That the mother have sole parental responsibility for the children, in relation to the care, welfare and development of the children, including but not limited to the children’s:

(a)education – both current and future;

(b)religion;

(c)health of; and

(d)living arrangements.

4.That except in the event of an emergency, the mother shall consult the Applicant father about decisions to be made in the exercise of her sole parental responsibility on the following basis:

(a)The mother shall provide to the father in writing her proposed decision and the reasons why she proposes for such a decision, at least thirty (30) days before the proposed change;

(b)Within seven (7) days of the mother’s request as per Order 4(a), the father shall provide a written response of his agreement, alternate proposal or disagreement;

(c)In the event that the father is making an alternate proposal or disagreeing to the mother’s proposal as per Order 4(a), the father shall provide written reasons to the mother in compliance with Order 4(b);

(d)The mother shall consider the father’s reasons as per Order 4(c) and endeavour to make a decision in the best interests of the children; and

(e)Within seven (7) days of making a decision, the mother shall provide written reasons of her decision to the father having considered the father’s response.

Time between the children and the father in Australia

5.That upon the…

Continue reading Kattan & Nahas

Sign in free to access the full text

Details
AGLC
Kattan & Nahas [2023] FedCFamC1F 409
Case
[2023] FedCFamC1F 409
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between the parents of three children over where the children should reside. The father sought for the children to live with him in Country B, while the mother opposed this application and wanted the children to remain in Australia. The case was heard in the Family Court of Australia. The court was required to decide on the best interests of the children and whether it was in their best interests to live with their father in Country B. The court also needed to consider the children's wishes and the relationship they had with their father.

In reaching its decision, the court considered the expert evidence provided by Dr J and the recording of the children’s wishes at the time. The court found that the children had a clear wish not to live in Country B, despite expressing a wish to spend time with their father in Australia. The court found that the children were settled in Australia, enjoyed their school and extra-curricular activities, and had become primarily attached to their mother as a result of being with her solely for over four years. The court also found that the mother provided well for the children’s needs and that there was no reasonable prospect of the court being persuaded that it was in the best interests of the children to live with their father in Country B.

The court dismissed the father's application for the children to live with him. The court found that the children's clear wishes not to live in Country B should be seen in the context of the undisputed facts, including the father's decision to leave Australia in early 2017 and his limited ability to return due to his employment. The court also found that the children's primary relationship was with their mother, who had been their primary carer since the father's departure. The court was satisfied that the children's wishes were that they wished to spend time with their father but only in Australia, and that they were uncomfortable with being required to travel to Country B to see him.

The court made an order that the children remain in Australia and that the father be permitted to spend time with them in Australia. The court also ordered that the father maintain contact with the children through regular communication and visits. The court acknowledged the father's concerns about not being involved in the children's lives but found that his decision to leave Australia was the primary reason for the current situation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Before considering the competing proposals, and in particular the father’s application that the children come to Country B to spend time with him – it not being seriously in dispute that if the father does get to Australia, that the mother would, in the best interests of the children, support the children spending time with him here – it is appropriate I make some comments about the family report by Dr J.EXPERT EVIDENCE As earlier indicated, the original report process by Mr G, for reasons which are not clear to me, confronted many delays and extended between initial interviews in April 2017 with the mother and children; interviews with the parents again in November 2017; further interviews with the father in June 2018 and the children in July 2018; and finally with the children in March 2019, resulting in a report dated 27 March 2019. Although the Independent Children’s Lawyer relied upon Mr G’s report, he was not required for cross-examination, and as a result, even though relied upon, his opinions as expressed at the time cannot be tested. In any event, they now are many years ago. However, his recording of the children’s wishes at the time is able to be relied upon. In the reasons for the decision to summarily dismiss the father’s application for the children to live with him, the Court [at 25(c)] of those Reasons said:(c)the children’s clear wishes not to live in [Country B], even though all children express a wish to spend time with the father in Australia, should be seen in the context of the following undisputed facts:(i)The father left Australia in [early] 2017 and has not returned, despite promises to do so;(ii)The oldest child, [X], soon to turn 16 years, is settled in Australia; enjoys his school, friends and extra-curricular activities. He has memories of being in [Country B] and other parts of [L Region] with his father, and although he expresses an interest in visiting his father, he is concrete in his thoughts about remaining in Australia to complete, at least, his education. There is no reasonable prospects of the father persuading a Court, in the circumstances, that [X] should live in [Country B];(iii)Although the two youngest siblings of [X] do not have the same likely recollection of being in [Country B], they have become primarily attached to their mother as a result of being with her solely for over four years. She provides well for their needs (both emotionally and psychologically) and whilst the evidence of the father is that he has, in the past, demonstrated his capacity to meet the children’s needs as the primary carer as well, the passage of time since [early] 2017 and last physical contact with the father means, in the Court’s view, there is no reasonable prospects of the Court being persuaded that it is in the best interests of [Y] and [Z] at this time that they live with the father in [Country B];(iv)The mother has, for her articulated reasons, deposed to her intention to remain living in Australia. An order that the children (or any of them) live in [Country B] would result in the relationship between the children and their mother, being put at risk of severance;(v)Whilst the father might say his relationship has been put at risk with the children whilst he has lived overseas since 2017 (and not returned), the difference is that, as a consequence of his decisions to maintain a 23 year working history as [an] engineer in [L Region], with only two weeks holiday a year – even without a pandemic – his ability to return to Australia, even for a holiday, is limited.; and(vi)I am not critical of the father maintaining his employment. He has his current wife and two infant children from that marriage to support. There is no evidence he provides child support for [X], [Y] and [Z], and he offers, in his evidence, no explanation for leaving the mother to solely meet the needs of the three children who are residents of Australia with the assistance of Government support.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In circumstances where X has indicated he would not wish at this stage to travel to L Region to spend time with his father, the likely psychological harm to Y and Z if they were in some way permitted to spend time with the father without the company of their soon to be adult brother, although not assessed, is in my view obvious. That is because for the very least, and sadly, Y was only six and Z was only four when they spent any physical time with their father. Since that time, the mother has been their primary relationship and the centre of their security.ADDITIONAL CONSIDERATIONS I am satisfied that the children’s wishes, as expressed, are that they wish to spend time with their father but only in Australia, and that they are uncomfortable with being required to travel to Country B to see him, now particularly where they have spent no time with him for over six years. The children’s primary relationship is with their mother, who has been their primary carer since the father elected to return to Country H in early 2017. I acknowledge that for part of the time before then, the father and his current wife, Ms F, had been the primary carers of the children. At different stages during the trial, the father made it clear that he felt it was unfair to his wife, who had provided excellent care of the children for some years, as the history sets out, to be denied the opportunity to maintain a relationship with them. The evidence supports a finding that the children have as good a relationship with their father as might be expected considering the history. The fact that they still hold respect for him and do not wish to be disrespectful of him is a significant finding. I am satisfied that the three children – X, Y and Z– have an intact sibship relationship of some strength, support and importance. It is sad in many ways that the father’s children from his current relationship, W and V, have not been able to maintain the sort of relationship with the Australia-based children that he would hope. In my view, however, this is entirely due to the fact that the father has chosen not to return to Australia, sometimes after Covid-19, when he has had the ability, I find, to do so. Because of the poor communication of the parties at the time that the father – perhaps a difficult decision – chose to return to Country H to work in his chosen professional field, the communication between the mother of the children and the father has been less than effective, and this has required the mother to make the majority of decisions, including schooling and health decisions and also how they practise their faith. Although the father is critical of not being involved with making those decisions, in the end result, it did not seem to me that he was critical of the decisions that had been made, rather his lack of consultation. I have already indicated that the father has, it seems, not met his obligations as a parent to maintain the children (a factor to be considered under s 60CC(3)(ca)).