Kattan & Nahas
[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 father giving the mother at least thirty (30) days’ written notice of his intention to spend time with the children in Australia, the children shall spend time with the father as agreed between the parents, but failing agreement as follows:
(a)The father will advise the mother in writing of:
(i)the dates and times he will be available to spend time with the children along with a proposal of spending time arrangements;
(ii)where the children will be spending time with the father, together with details of where the father will be residing whilst in Australia; and
(iii)the names of all people the father will be travelling with.
(b)The mother shall respond in writing to the father’s proposal within seven (7) days as follows:
(i)What parts of the father’s proposal she agrees with, if any;
(ii)what parts of the father’s proposal she does not agree with, if any and the reason for any refusal of any part of the father’s proposal; and
(iii)alternative proposals to any part which cannot be agreed.
(c)The parents shall use their best endeavours to reach agreement. In the event no agreement is reached between the parents, the father is at liberty to apply to the Court on the discrete issue of the time the children spend with him in Australia during the dates given by him under Order 5(a)(i).
6.That the children shall communicate with the father at all times as may be agreed between the parents in writing, but failing agreement as follows:
(a)On Saturdays and Wednesdays of each week between 7.00pm and 7.30pm (Queensland, Australia time), with the father to initiate the telephone calls;
(b)On the children’s birthday, the father’s birthday and Father’s Day between 7.00pm and 7.30pm (Queensland, Australia time), with the father to initiate the telephone calls;
(c)All calls shall be in private, unrecorded and uninterrupted; and
(d)The mother shall facilitate such calls by ensuring that her or the children’s mobile or communication device is charged and in a mobile reception area.
7.That the children are at liberty to contact the father at any reasonable time initiated by them.
8.That the father be at liberty to send to the children correspondence, birthday and Christmas gifts, with the mother to ensure the children receive those items.
9.That the parents shall foster and encourage the children’s relationships with the other parent.
Restraints
10.That the parents shall not denigrate the other within the presence, hearing or sight of the children.
11.That the parents shall not discuss issues of adult conflict arising from the Court Orders within the presence, hearing or sight of the children.
12.That the parents shall not physically discipline the children under any circumstances or allow someone else to physically discipline the children.
Exchange of information and authorities
13.That except for the telephone communication involving the children or in an emergency, all communication between the parents shall occur by way of text messages and/or email only.
14.That the parents each keep the other informed of an email address and telephone contact at which they can be contacted, and advise the other parent of any change to that email address and telephone contact within five (5) days of any change.
15.That the mother inform the father in writing of the children’s residential suburb, and advise the father of any change to that address within five (5) days of any change.
16.That the mother inform the father in writing of any serious medical condition that the children have been diagnosed with or suffer from.
17.That this Order operates as an authority for any professional care provider of the children (whether school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the children at their own expense.
18.That this Order hereby provides the necessary authority for the father to obtain, at his expense, information and copies of documents relating to the children’s education, including, school reports and photographs directly from the school.
19.That the parents are at liberty to attend all events involving the children, including but not limited to sporting events, extra-curricular activities, school functions and events that allow for parental attendance or participation.
Travel/passport
20.That pursuant to s 11 of Australian Passport Act 2005 (Cth), the mother shall be at liberty to obtain an Australian travel document (i.e. passport) for the children in the absence of the father’s consent.
21.That unless otherwise agreed between the parents in writing, the parents are restrained from removing the children from the Commonwealth of Australia.
22.That the Independent Children’s Lawyer be discharged.
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 the pseudonym Kattan & Nahas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Parenting proceedings in respect of three children of the relationship between the Applicant father and the Respondent mother have been on foot since the father commenced proceedings in October 2016. A snapshot of the history that this case has taken is set out in the reasons for judgment published on 30 June 2021 (see Kattan & Nahas [2021] FamCA 461). For context, however, the following history is again given for the dispute that remains to be determined, which is essentially whether the children of the relationship should spend time with their father in Country B, where he works and lives.
HISTORY
The father and mother, both of whom are now Australian citizens, originally commenced their relationship in 2004 and, in what might be termed an “arranged marriage”, were married in Country C in 2004. Their first child, X, was born in 2005. He is now approaching his eighteenth birthday. The family moved to Australia in 2008, after which two further children were born to the union, Y, born 2010 (now 12 years of age), and Z, born 2012 (now 13 years of age). The family moved to Country C in 2012, and it seems that the children then started to live primarily with the father in that country. They did so for some time, although the mother did, it appears, spend some time with them. In 2014, the father married Ms F. That union has produced two children, W, who is now aged seven, and V, who is now aged three.
The mother returned to Australia to study in late 2015, leaving the children in Country C with the father and his wife, although the children and the father returned to Australia about six months after the mother, in 2016. The father has an older child, Mr K, from an earlier relationship. However, that child became estranged, at least in some ways, from his father in mid-2016. It is unclear the nature of his relationship with Mr K now, who continues to reside in Australia. When the father returned to Australia with the children in 2016, the mother began spending time with them. However, in late 2016, the mother withheld the children in her care, as she explains at paragraph 61 of her trial affidavit.
On 18 October 2016, the father commenced proceedings in the then Federal Circuit Court of Australia, and on 8 November 2016, Judge Turner made Orders that the children live with the father immediately and that the mother spend time with the children. There were other incidents that took place before the father returned to Country H, and now particularly lives in Country B, in early 2017. That date is significant. X was nearly 12 years of age at the time, Y was six years of age, and Z was five years of age. What is clear is that since 2017, the father has not returned to Australia and has spent no physical time with the children. That is now over six years ago. Little purpose is served in making findings about some of the events that have occurred after Judge Turner’s Order and before the father chose to move back to Country H for work. He is an engineer and, it seems, has been consistently engaged in employment since returning to that region.
In circumstances where the father had left the country, Judge Turner, on 5 May 2017, made Orders for the children to live with the mother; for the mother to have sole parental responsibility, and for the father to spend time with the children by telephone. The mother says, and it is not seriously challenged, that from around February 2018, the father stopped paying child support for the three children in Australia. By this stage, of course, his oldest child of his new relationship, W, had been born. For reasons which are not clear, a single court expert, Mr G, had been engaged to prepare a family report, but that family report took over two years to be produced. I give the details of the interviews in relation to that family report shortly in these Reasons.
What is clear, however, is that the delay in having the matter determined in any form was associated with the father’s failure to return to Australia whilst promising on a number of occasions, and indicating to the Court, that he would do so. As a result of Orders made by this Court after the proceedings were transferred to the Family Court of Australia (as it then was), by the Federal Circuit Court of Australia (as it then was), Dr J undertook interviews with the children to update their views, with such interviews taking place on 12 April 2021, resulting in a report on 21 April 2021. On 18 June 2021, the Court heard an application that the father’s application for the children to live with him be summarily dismissed, and as earlier indicated, the Judgment in respect of that application, which was granted, was delivered on 30 June 2021. Thereafter, the matter was before the Court for further hearing on 8 October 2021, with final submissions made by the father in writing on 31 October 2021. The Court expresses its regret for the delay in the production of these Reasons.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
COMPETING PROPOSALS
The Independent Children’s Lawyer, on 7 October 2021, produced a minute of order contended for. It is marked as Annexure A to these Reasons and was tendered as Exhibit 1. The orders effectively provide for the children’s time to be limited to when the father is able to be in Australia and upon the giving of 30 days’ notice. The orders proposed by the Independent Children’s Lawyer are that the children be restrained from being removed from the Commonwealth of Australia and only that the current airport watch list orders continue. The Independent Children’s Lawyer submits that the parties are unable to communicate well enough, and that as a result, sole parental responsibility orders should be vested in the mother.
The mother, in her final submissions, adopted entirely the Independent Children’s Lawyer’s orders.
The father’s written submissions filed 31 October 2021, whilst maintaining his belief that the children should live with him in Country B but acknowledging the Orders of the Court made to summarily dismiss that part of his application, seeks orders that the parents have equal shared parental responsibility and that the children can temporarily live with the mother and “until me returning back to Australia when I will apply to the court again”, I infer for an order for residence. His submissions make it clear that he wishes to “keep the door open to allow them to travel to visit me…on a condition the father return them after the visit.”
It is the father’s evidence, of course, and perhaps not surprisingly, that if the children do visit him in Country B or perhaps another country in L Region, they will be returned to Australia.
The father seeks an order for equal shared parental responsibility, because he believes it important that his input into decision-making on major issues be considered before a decision is made. His written submissions also make it clear that he seeks video calls between the children and himself any day between 5.00pm and 8.00pm Australian time and totally unrestricted contact with the children by social media, email or text.
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.
No doubt those comments were ringing loudly in the ears of the father and he felt it necessary, and was given the opportunity properly during the trial, to challenge many of the opinions of the court expert Dr J in his cross-examination of her. Dr J’s report, known as a “children’s wishes report”, is dated 21 April 2021 and arose from interviews conducted with the children on 12 April 2021.
Arising from that cross-examination (noting that Counsel for the mother elected not to cross-examine the report writer), the following further evidence emerged:
(a)The children were all very chatty with Dr J;
(b)X discussed sports but never mentioned “dropping school” to pursue a sporting career. He never mentioned his earlier injury which had caused some conflict between the parents when the father was still in Australia;
(c)X did not specifically mention his paternal grandparents, but he had an acute awareness of the political unrest in Country C and the difficulties for his extended family in that country, although the child said the maternal grandmother gave him the impression when he last spoke to her that she did not feel comfortable ringing him, he expressed no concerns about engaging with his grandparents;
(d)Generally now, with his increased interests, X was much more focused on himself and his life and acknowledged he was “slack” at times with communicating both with his father and extended family members;
(e)When X was questioned about his older brother Mr K, as recorded at paragraph 4.28 of the children’s wishes report, he expressed positive feelings towards his older brother and did not consider his relationship is over but felt a little disconnected from him. Clearly, Mr K, at his age, has his own life to lead as well;
(f)X made it clear he does not wish to travel overseas to see the father, given not only the Covid-19 situation (which was in existence at the time of the interviews) but also the conflicts in Country C;
(g)X showed he has respect for his father and sees him in a positive light and does not wish to show disrespect, but he is keener to focus on his own interests and himself;
(h)The report writer, Dr J, described the children as “delightful” and formed the view that they all seemed to hold the father “in high regard”. In expressing their views as recorded, the expert did not form a view that the children’s comments had been coached or influenced by the mother; they spoke fluidly with little prompting; appeared relaxed, happy, and she detected no hint of “fear” in their comments; and
(i)All the children would love to see their father in Australia, but the younger children in particular expressed concerns about travelling overseas to see their father and whether they would be returned.
Understandably, the father’s cross-examination was somewhat of an information-gathering exercise, particularly as to what was happening in the mother’s household (for example, her work hours; the mother’s study routine; when the children go to their place of worship, etc). My impression was that the father was also interested in their school performance, which appears to be satisfactory, and on the evidence, they are developing well and progressing both socially and scholastically. Dr J, under such questioning by the father, was required to explain to the father that her focus was on the children and their views, not examining (as Mr G had undertaken) a fulsome examination of either parent’s parenting capacity or attitude.
Certainly, on all the evidence of this expert, I am comfortably satisfied that the children are happy and well cared for by their mother; attend school regularly; that the mother encourages the children’s positive recollections of their father; that she encourages the children to engage in appropriate extra-curricular activities, not only associated with their religion but sport and other activities and that the children would enjoy spending time with the father if he was able to travel to Australia.
There was no hint of opposition by them to spend time with their father if he came to Australia. Interestingly, the failure of the father to return to Australia since early 2017 (now over six years ago) has not caused the children to express any sense or feelings of abandonment by their father. They seem to understand he lives a long way away, and his regular telephone/video interactions do enable their connection with their father to be maintained at some level. I accept that interaction in that form is not in any way a good substitute for physical intimacy which children and a parent generally enjoy.
I find that this ongoing positive connection is also contributed to by the mother’s child-focused support of their relationship with their father. There is no hint, for example, notwithstanding the criticisms the father makes of the mother, including in his trial material, that she has in a sense demonised the father to the children or sought to influence them about having a relationship with their father. However, as will become apparent by the conclusions to these Reasons, if the father genuinely wishes to preserve his relationship, he is well advised to demonstrate his commitment to these children by making visits regularly to Australia (ideally with his wife and the young children who are half-siblings of the children in Australia) so that the younger children in particular get some real benefits of what he can offer them – before, like Mr K and perhaps soon X, the children’s growing interests outside of the home and their focus on their peers, schooling, careers and growing independence cause the only current communication, by electronic means, to be less beneficial to them and their relationship with the father, and perhaps less maintainable. Because of the narrowness of the dispute, I deal with the essential issue about where the children should spend time with their father within the matrix of the relevant primary and additional considerations.
PRIMARY CONSIDERATIONS
I am satisfied, and the proposals of the parents and their evidence identifies that both parents acknowledge, it is in the interests of and a benefit accrues from these having a meaningful relationship with both parents. In that regard, the father’s failure to come to Australia despite promises on a number of occasions is not adequately explained in the post-COVID situation. There is no evidence, for example, nor was any reopening of the case sought by either party, to indicate that the father has, since travel restrictions have reduced, sought to come to Australia and spend time with the children in Australia.
Section 60CC(2)(b) of the Act requires the Court to consider “the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence”. Despite the criticisms of the father, some of which involve allegations that the children are being radicalised, abused, subject to extreme thoughts and principles and the like, I am not satisfied that the children are at any risk of harm in the mother’s care. There is no evidence to suggest the children would be at harm in the father’s care as well. However, if the children were permitted to spend a holiday with the father in Country B and they did not return, then I would regard that more likely than not would create extreme psychological harm to the children.
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)).
There are clear practical difficulties and expense in the children spending time with the father in Country B, where he lives, or another country in L Region. There is no evidence to suggest the mother has the capacity to meet any airfares for these children. There is no evidence before me that the children could travel unaccompanied; therefore, the costs of travel to and from Country B would need to include the accompanying person. There is no evidence that these children have ever travelled overseas at an age where they can understand the challenges of long overseas travel. More importantly, and this is a matter to which section 60CC(3)(m) is enlivened, is the risk of these children returning to Australia if permitted to leave Australia and travel to Country H.
Country B and Country C are not Hague Convention countries. The father, in his proposals, did not offer any form of security for the children to return to Australia. The Independent Children’s Lawyer, in final submissions, indicated that if the children were permitted to leave Australia, there are real concerns that they would not be returned, such is the father’s desire that they live with him (although, for reasons indicated, not currently pursued) and the criticisms that he has identified in his trial material about the mother. I agree with the Independent Children’s Lawyer’s submission. It is a concern, and one which in this case is almost determinative of the ultimate decision that the children not travel, at this stage and their age and development, to Country B.
In respect of the capacity and attitude of the parents to parenting, as already indicated, the mother has been doing almost sole parenting since the father left the country. Although the father is critical of some of her choices and the way that she manages the household (for example, relying on X to assist if the mother had to work early), I thought those criticisms were unfair for a single mother in this situation. Secondly, I have no evidence to suggest that if the children were spending time with the father, that he would not provide for their care adequately. In his final submissions, he pointed to the fact that he describes himself as a reasonable person who would treat the children well. I am prepared to accept that self‑proclaimed capacity.
There are no family violence orders or family violence issues which arise in this case at this time. The Court is asked to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. In my view, the orders that the Court proposes to make in this case could not lead to further proceedings unless:
(a)the father chose, as he suggests he will, to return to Australia to live permanently; or
(b)the children reach an age and state of maturity where any wishes to travel overseas to see their father, if he still remains overseas, should be given greater weight than the current wishes opposing such travel can be given.
PARENTAL RESPONSIBILITY
The Independent Children’s Lawyer submits that because of the conflict between the parents and the fact that they are so far apart and the communication is so poor, it is in the best interests of the children that the mother exercise sole parental responsibility for major long-term decisions. She has effectively done so since the father left the country. As already indicated, although the father is critical of the mother not consulting him about some of those matters, no real criticism of the ultimate decision she has made is launched by the father. The father, in his written submissions, asks that the Court make orders for “shared responsibility for the decisions for the main issues” for the reasons which are set out in his written submissions.
They are, in short, as follows:
(a)In respect of the education of the children, both current and future, the father indicated that he does not oppose the children complete the year in M School, but would ask thereafter that they move to the “nearest best ranking public school until they finish their year 12. This will help them to have friends from all community spectrums”;
(b)This aim for the children and the reason he seeks to be involved in decision-making is the father’s concerns that by the children maintaining education at M School, as they were at the time of the hearing, their exposure to a broader Australian community is reduced. The father suggests, without any evidence to indicate that this has been a difficulty in the past, that he would be able to communicate with a public school better and to speak with teachers more easily to understand the children’s situation and needs if they were in a public school. I do not accept this submission;
(c)In relation to the religion of the children, the father submitted that:
I don’t think I have a dispute with the mother about if the children are [belonging to her religion] or not (even this is their decision when they grow up). However, attending the [place of worship] (outside the normal must prayers) for more religion lessons is not needed even from [the religion’s] requirements for children. They attend [the place of worship] when they are growing up (not as children) . It is associated with risks beside its time (4pm to 7pm) limits the children from any normal afternoon activities. The father showed in his questions to the mother that she is leaving the children to the day care man/woman to drive them from school to the [place of worship] and also from the home to the school in most days. It means the children are not under supervision during their stay at the [place of worship]. This is a high risk for any child from abuse and the risk from whatever ideas will be implemented in their small brains.
Therefore, I request the court to order the mother to stop sending [Y] and [Z] to the [place of worship] until they are 14 years old to choose what they want. For [X] he is [16] years and he can choose what he wants. However, he should know that he doesn’t need to go as the mother wants.
(As per the original)
(d)I am not satisfied on the evidence that the mother’s adherence to her faith and introducing the children to that religion and their practice of it is in any way excessive or has the risks which the father raises. Clearly, the children will, in the passage of time, choose how involved with the religion they desire to maintain. In circumstances where the mother has no other family support in Australia, the fact that she may use other people in her community (whether of the same religious faith or otherwise) is hardly surprising and not to be condemned in the way that the father does; and
(e)The father expressed and submitted that he held a deep concern about the mother’s position against the Covid-19 vaccination when it is available for the children, submitting that:
I think [X] should take it. He is more than 16 years old. It is his choice.
I request the court to order the mother to do what it is needed to give [Y] and [Z] the corona vaccines and booster when it is available for their age and as recommended by health authorities.
For other health issues, a shared parenting is needed. She should consult the father in all major health issues through a written communication.
Since this case finished in October 2021, there has been a change in Australia in the way restrictions on travel operate because of previous Covid-19 concerns. I have no evidence about whether the children have or have not been vaccinated. It was not a matter ventilated during the trial. I do not know whether, consistent with the general advice from medical authorities in Australia, the mother has had the children vaccinated.
The father’s submissions do not persuade me that it is in the best interests of the children, against the submissions of the Independent Children’s Lawyer and the mother, for the parties to have equal shared parental responsibility. As the decision by Kent J in Vallans & Vallans (2019) 60 Fam LR 193 made clear, there needs to be a principled reason to depart from the statutory presumption of equal shared parental responsibility. In my view, those reasons are apparent from this Judgment, namely that the mother has been making decisions without assistance from the father or input from the father for over six years now; the father still reflects in his material, if not his final submissions, a lack of confidence in the mother’s decision-making, and in a way, from a long way away, seeking to impose his rule upon the mother. The minute proposed by the Independent Children’s Lawyer for the mother to have sole parental responsibility included provisions whereby the father was to be consulted. In my view, that process is appropriate, and that is the order which I believe is in the best interests of the children.
TRAVEL TO COUNTRY B
I find not only because it is contrary to the children’s wishes, but because I am not satisfied that if the children were to travel to Country B, they could be returned, that it would be contrary to the best interests of the children to permit an order to be made at this stage for the children to travel to visit the father in Country B.
Despite the numerous promises by the father – I acknowledge interrupted by the difficulties of the Covid-19 travel restrictions – that he would return to Australia even for a holiday to see his Australia-based children, without an adequate explanation for that failure, it has made it more difficult for the children to feel confident that they will be safe with the father and will return to Australia. The father says he should just be believed, and yet he will not and has not to date found the money, even by himself, to come to Australia to see his children. His failure to do so has robbed the children of the many rich benefits he can offer them in terms of his personality, life experience and love for them. Whilst I can accept that if he chooses to do so, and after a visit or two, the children’s confidence in him might be different, until that occurs, it is not in their best interests to force these children against their wishes to travel to Country B.
The orders proposed by the Independent Children’s Lawyer in relation to the father giving notice to the mother and spending time with the children are, in my view, entirely appropriate. I do not regard it as appropriate to make an order, as the father seeks, that he can contact the children at any time, any day. It makes it difficult with children who have other extra-curricular and school activities being certain that they will be in a particular place at a particular time on a particular day. I am, for these reasons, more attracted to the proposition set out in the Independent Children’s Lawyer’s minute of order, although it would be the Court’s view and reflected in the minute that if the children express a wish to speak to their father initiated by them, the mother should do everything reasonably possible to facilitate that wish being achieved.
For these reasons, the orders which appear at the commencement of this Judgment and are now pronounced are, in the Court’s view, in the best interests of the children at this time.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 24 May 2023
ANNEXURE A
1.All previous Orders shall be discharged.
2.That X born 2005, Y born 2010 and Z born 2012 (herein referred as “the children”) shall live with MS NAHAS (herein referred as “the mother”).
3.That the mother shall have sole parental responsibility for the children, in relation to the care, welfare and development of the children, including, but not limited to:
a)The education of the children - both current and future;
b)The religion of the children;
c)The health of the children; and
d)The living arrangements for the children.
4.That except in the event of an emergency, the mother shall consult MR KATTAN (herein referred as “the father”) about decisions to be made in the exercise of her sole parental responsibility on the following basis.
a)The mother shall provide her proposed decision to the father in writing and the reasons why she proposes for such a decision at least 30 days before the proposed change;
b)Within 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;
e)Within 7 days of Order 4(b), the mother shall provide written reasons of her decision to the father having considered the father’s response and in compliance Order 4(d).
Time between the Children and the father (in Australia)
5.That upon the father giving the mother at least 30 days written notice of his intention to spend time with the children in Australia, the father may spend time with the children as agreed between the parties but in the absence of an agreement as follows:
a)The father will advise the mother in writing of:
(i)the dates and times he will be available to spend time with the children along with a proposal of spending time arrangements;
(ii)where the children will be spending time with the father along with where the father will be residing whilst in Australia;
(iii)the names of all people the father will be travelling with;
b)the mother shall respond to the father's proposal within 7 days in writing as follows:
(i)what parts the father’s proposal she agrees with, if any;
(ii)what parts of the father's proposal she does not agree with, if any and the reason for any refusal of any part of the father’s proposal; and,
(iii)alternative proposals to any part which cannot be agreed.
c)The parties shall use their best endeavours to reach agreement but if the parties are not able to agree then the parties have the leave of the Court to bring this issue only before the Court.
d)In the event that no agreement is reached between the parties, the father is at liberty to apply to the Court.
6.The children shall communicate with the father at all times as may be agreed between the parties in writing but in the absence of an agreement as follows:
a)On Saturdays and Wednesdays of each week between the hours of 7:00pm and 7:30pm (Queensland, Australia time) with the father to initiate the telephone calls;
b)On the children's birthday, father’s birthday and father’s day between the hours of 7:00pm and 7:30pm (Queensland, Australia time) with the father to initiate the telephone calls;
c)All calls are to be in private, unrecorded and uninterrupted;
d)The mother shall facilitate such calls by ensuring that her or the children’s mobile or communication device is charged and in a mobile reception area.
7.That the children are at liberty to contact the father at anytime.
8.That the father shall be at liberty to send to the children correspondence, birthday and Christmas gifts, with the mother to ensure that the children receives those items.
9.That this Order hereby provides the necessary authority for the father to obtain, at his expense, information and copies of documents relating to the children’s education, including, school reports and photographs directly from the school.
10.That the parties subject to the Order shall foster and encourage the children’s relationships with the other party.
11.That the parties subject to the Order shall be entitled to attend all events involving the children including but not limited to, sporting fixtures, extracurricular activities, sporting activities, school/day care functions and event that allow for parental attendance or participation.
Restraint
12.That the parties shall not denigrate the other in the presence or sight of the children.
13.That the parties shall not discuss issues of adult conflict arising from the Court Orders in the presence or sight of the children.
14.That the parties shall not physically discipline the children under any circumstances or allow someone else to physically discipline the children.
Exchange of Information
15.That except for the telephone communication involving the children or in an emergency, all communication between parties shall occur by way of text messages and/or email only.
16.That the parties each keep the other informed of an email address and telephone contact at which they can be contacted and provide the other parent with notice of any change to that email address and telephone contact within five (5) days of any change.
17.That the mother shall inform the father (in writing) of the children’s residential suburb and provide the father with notice of any change to that address within five (5) days of any change.
18.That the mother shall inform the father (in writing) of any serious medical condition that the children have been diagnosed with or suffering from.
19.This order operates as an authority for any professional care provider of the children (whether school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the children at their own expense.
Travel/passport
20.That pursuant to s11 of Australian Passport Act 2005, the mother shall be at liberty to obtain an Australian travel document (i.e. passport) for the children in the absence of the father’s consent.
21.Unless agreed between the parties in writing, the parties shall be restrained from removing the children from the Commonwealth of Australia.
The Court further orders:
22.The Independent Children’s Lawyer shall be discharged.
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