KHOURY & MILLS

[2015] FamCA 423

FAMILY COURT OF AUSTRALIA

KHOURY & MILLS [2015] FamCA 423

FAMILY LAW – PARENTING – Application for shared responsibility except for religious matters

APPLICANT: Mr Khoury

RESPONDENT: Ms Mills

INDEPENDENT CHILDREN’S LAWYER: Ms Evans

FILE NUMBER: CAC 989 of 2008

DATE DELIVERED: 11 May 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Fleming (did not appear)

SOLICITOR FOR THE RESPONDENT: No attendance by or on behalf of the respondent

Orders

1. The application filed on 15 April 2015 is summarily dismissed. 

2. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khoury & Mills has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 989 of 2008

Mr Khoury

Applicant

And

Ms Mills

Respondent

REASONS FOR JUDGMENT

1. The application was filed on 15 April 2015 - at that point without an affidavit - although there appears to be some confusion about whether or not an affidavit was required. 

2. The application sought orders in these terms: on a final basis:

   1.that the parties have equal shared parental responsibility for the children, namely, L, born in 2002 and M, born in 2005, except for religious matters. 

   2.that the father have sole parental responsibility for the children in relation to religious matters.

   3.that the children will spend time with the father as follows:

   (i) for a period of two months following the making of these orders for four hours on the Saturday and four hours on the Sunday each alternate weekend

   (ii) following the period referred to in order 4(a) for a period of two months for eight hours on the Saturday and eight hours on the Sunday of each alternate weekend

   (iii) following the period referred to in order 4(b) from 9 am Saturday until 5 pm Sunday each alternate weekend. 

   4.that the children spend time with the applicant father on each alternate weekend from after school until school recommences on the following week.

   5.that the children spend time with the father on half of each school holiday period. 

   6.such other orders as the court deems necessary. 

3. The section in the application dealing with interim procedural orders is left blank, and, therefore, presumably no interim orders are sought. 

4. Finally, I am informed just before I came into Court that on 8 April, an affidavit in support of this application was received, and I have printed or caused to be printed that affidavit from the Commonwealth Court’s Portal.

5. I will return to the substance of the affidavit in a moment, but I should say, by way of introduction, that the matter was last before this court substantively on 7 May 2013, and on that day, the following orders were made by me: 

   1.That the mother have sole parental responsibility for the children (whom I have referred to previously).

   2.That the children live with their mother.

   3.That the father’s application for an injunction to restrain the mother from relocating from the B Town area be refused.

   4.That the father may communicate with the children by telephone as follows:

   (i) Each Saturday at 6 pm and on each child’s birthday at 6 pm, unless the parties otherwise agree in writing.  These telephone calls shall be on speakerphone unless the parties otherwise agree.

   5.For the purpose of facilitating order 4 above, the mother shall cause the children to telephone the father at the time specified in the orders.  If the father is unavailable to or does not answer the call from the children at that time, no substitute call will be arranged or will occur. 

   6.While the mother remains in the B Town area, the children shall spend time with the father, the two hours on the first Saturday of each month, unless the parties otherwise agree, supervised by X Service in B Town.

   7.The mother will, if the father continues to make his mailing address available to her, provide the father from time to time with a report about the children’s development and welfare.  The mother will also advise him as soon as possible of any serious matters relating to the children or any medical treatment they may be undergoing other than for routine childhood illnesses. 

   8.The mother will authorise and direct any schools the children attend and provided to the father, upon his request and at his expense, copies of the children’s school reports or any other notices that may issue from the school about the children or their education.  The mother will provide to the father in writing details of the name and addresses of the school the children are attending. 

   9.Otherwise, all other parenting orders in relation to the children are discharged. 

6. The orders then provided that the usual obligations set out under s 62(b) and s 65(da)(2) be annexed to the orders which I believe they were when they were published. 

7. The other “usual” final orders were also made that any material that had been produced subpoena was to be returned and that the independent children’s lawyer be discharged upon the expiration of the appeal period and that the mater be removed from the pending cases list.

8. In fact, this was the second substantive judgment delivered in this matter relating to the parties, the first judgment being on 2 December 2009 by Federal Magistrate Brewster (as he then was) and, on an interim basis, the orders made by his Honour were affirmed by me on 13 October 2011 before the further set of final orders made on 7 May 2013. 

9. The material before the Court today, including the affidavit that was filed electronically but recently, discloses some asserted breaches of the orders that I have just read out relating to a failure to make available the children, either to communicate with or to spend time with the father in accordance with those orders and expresses what, from time to time, appear in the affidavit as the concerns of the applicant about the mother’s apparent care for the children.

10. It would be reasonable to say that there is nothing in the affidavit that has been filed which would satisfactorily demonstrate that it would be in the best interests of the children for the matter to be reopened and a substantive further final hearing be conducted between the parties.  This is a matter which has persisted since 2008, and it is time that it came to an end.  If, in fact, the applicant believes that there have been breaches of the orders made, he may, of course, bring applications that the respondent be dealt with for contravention of Orders of this Court without reasonable excuse.

11. I must say, however, having read the affidavit, that it does not appear to me that in relation to a number of the alleged breaches, that there would be sufficient evidence to establish what would be necessary to ensure that the matter was dealt with successfully in favour of the applicant under the relevant provisions of the Family Law Act. 

12. Finally, under a heading which is, quote, “the mother’s relationship with Mr S and concerns for the children’s welfare”, the applicant sets out what he describes as his concerns about Mr S who has, apparently, only recently been, or is about to be, released from jail.

13. I have no idea what Mr S was in jail for, if, in fact, he was in jail, and I have no idea why it might be that there is any proper reason on any evidence basis, apart from concern, supposition, suspicion and belief that Mr S would represent a concern to the well-being and best interests of the children. 

14. Finally, I note paragraph 42 of the affidavit of the applicant which says as follows, quote:

    I also worry that the mother is raising the children in the Cristian –

    which is misspelt –

    faith.  It has always been agreed in the past that the children would be raised in a Muslim faith.  Annexed hereto and marked ‘F’ is a true copy of the photograph of my children at a Cristian –

    again, misspelt –

    church.

15. There is no order in the orders made by me on 7 May 2013, which provides that the children would be brought up in the Muslim faith.  There is an order made by me which gave the mother sole parental responsibility which would include matters relating to religion.  There is nothing in the affidavit filed by the applicant which would in any way indicate that it would be in the children’s best interests for them to be raised as Muslims rather than Christians.  In such circumstances the order he now, apparently, seeks about this matter is unsupported by any evidence, and it is a matter which would require evidence if that were to be pursued.

16. However, the plain fact of the matter is that this is not a matter which needs to be re-opened.  The parties have had ample opportunities and, in particular, Mr Khoury has had ample opportunities to litigate the matter in the past and has had the benefit of at least two substantive hearings in this Court.  To continue the matter further in his absence this day and on the basis of the affidavit filed so far would, in my opinion, constitute an abuse of process. 

17. Although it has become clear in the jurisprudence of this court that the so-called rule in Rice & Asplund is not a rule and is not a threshold requirement for the parties to a court, it is almost always the case that it is not in the interests of children for a matter to be re-litigated again and again in a serial way once a final decision involving all relevant matters has been completed, unless there is some new and appropriate and serious matter which would cause a re-examination of those matters which are set out under s 60CC of the Family Law Act.  It has also been recently accepted in this Court, particularly by the Full Court, that the issue of the so-called rule in Rice & Asplund is not necessarily a threshold issue, to be decided before a consideration of broader matters.

18. With this in mind, the present affidavit, if it were intended to seek a revision of matters relating to the best interests of the children should have provided substantially different information to that contained in it, including the current circumstances of the applicant, where he is living, the way in which he would propose to exercise the time that he is seeking with the children, why the additional time would be in the children’s best interests and what would support his contention as to the religion in which the children were to be brought up.

19. It should have contained more substantive evidence in a genuine form rather than the suppositions, suspicions, beliefs and concerns that were expressed throughout the affidavit. In all of those circumstances, without specifically considering each section of s 60CC, and noting that a determination had already been made in the course of a final hearing that the mother should have sole parental responsibility, it seems to me that for me to further consider the issues of the sharing of the time that the children might spend with a parent or substantial and significant time would be inappropriate.

20. In any event, I note that Mr Khoury does not seek what would be defined under the Act as substantial and significant time, but, rather, something that would fall within a more traditional form of time the children might spend with the parent with whom they are not living.  In those circumstances, given the paucity of the evidence available, the poverty of the evidence available and the circumstances of the history of this matter, it is appropriate that in the absence of anyone appearing on behalf of the applicant, in addition, that the matter should be dismissed.  The application filed by Mr Khoury on 15 April 2015 is summarily dismissed.  The matter is removed from the pending cases list.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 11 May 2015.

Associate:

Date:  5 June 2015