FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mady & Farha (No 5) [2023] FedCFamC1F 736
File number: SYC 5754 of 2018 2 Judgment of: CAMPTON J Date of judgment: 28 August 2023 Catchwords: FAMILY LAW – PARENTING – Final parenting orders after nearly five years of litigation – Where, after fleeing Country C, the parents relocated to Australia as humanitarian refugees in 2018 – Where English is neither of the parents’ first language – Where each parent has significant vulnerabilities that have added layers of complexity to this parenting matter – Where the parents separated after an incident of family violence one month after they arrived in Australia – Where the child has lived with the mother and spent limited time with the father since separation – Consideration of risk posed by both the father and the mother – Where the Court finds that should the child spend time with the father without intervention, there is a low risk that the child will be exposed indirectly to family violence and a risk that she will experience emotional or psychological harm if the father is unable to control his intense emotions Where the Court finds the child is at risk of emotional and psychological harm if she continues to live with the mother without intervention – Where the child has absorbed the mother’s fears and anxieties about the father and has taken on responsibility for those anxieties herself – Where these risks are not unacceptable and can be ameliorated – Finding that it is in the child’s best interests to spend time and enjoy a relationship with the father – Slow, structured orders made to progress that objective. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 62G, 64D, 69ZN, 69ZR, 69ZQ, 102NA
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
LC v TC (1998) FLC 92-803; [1998] FamCA 37
Line v Line (1997) FLC 92-729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Mady & Farha [2022] FedCFamC1F 306
Mady & Farha (No 2) FedCFamC1F 1022
Mady & Farha (No 4) [2023] FedCFamC1F 385
Division: Division 1 First Instance Number of paragraphs: 334 Date of hearing: 9–11 May 2022; 15–19 May 2023; 2 June 2023; 28 August 2023 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the First Respondent: Ms Giacomo Solicitor for the First Respondent: Legal Aid NSW Domestic Violence Unit The Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 5754 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MADY
Applicant
AND: MS FARHA
First Respondent
Continue reading Mady & Farha (No 5)
Sign in free to access the full text
Details
- AGLC
- Mady & Farha (No 5) [2023] FedCFamC1F 736
- Case
- [2023] FedCFamC1F 736
- Decision Date
CaseChat Overview and Summary
This case concerns an application for parenting orders involving a father, his daughter, and the girl’s mother. The father was born in Country C in 1980 and currently lives with his parents and sister in Suburb V in Sydney. The mother was born in 1990, also in Country C, and lives with the daughter, X, at an undisclosed address. The parents were married in 2011 in City Y, Country C, and X was born in 2014. The parents relocated to various countries, including Australia, before separating in 2018 when the mother left the family home following an argument and an incident of family violence. X stayed with the father that night, but the following day, Police collected X from the family home and took her to the mother. X has remained living with the mother since.
The legal issues in this case centred around the best interests of X, the daughter, and the appropriate parenting arrangements for her. The court needed to determine the conditions under which the father could spend time with X, the necessity for therapy for both parents and X, and the mother's right to travel outside Australia with X. The court also needed to consider the potential impact of the father's family on the development of a relationship between X and her father.
The court, in its reasons, emphasised the importance of X developing a meaningful relationship with her father, while ensuring her safety and well-being. The court decided that the father should initially spend time with X in the presence of the paternal grandmother, before progressing to unsupervised visits. The court also ordered that both parents engage in therapeutic processes to improve their parenting capacities and for X to receive therapy. Injunctive orders were made to prevent further family violence. The mother was permitted to travel outside Australia with X, provided that X had spent time with the father for twelve months.
The court made orders to provide X with the opportunity to develop and foster a meaningful relationship with her father, under the supervision of the paternal grandmother and later, a professional supervisor. Both parents were required to engage in therapeutic processes to improve their parenting capacities and for X to receive therapy. Injunctive orders were made broadly in the terms sought by the Independent Children's Lawyer. The mother was permitted to travel outside Australia with X, provided that X had spent time with her father for twelve months.
The legal issues in this case centred around the best interests of X, the daughter, and the appropriate parenting arrangements for her. The court needed to determine the conditions under which the father could spend time with X, the necessity for therapy for both parents and X, and the mother's right to travel outside Australia with X. The court also needed to consider the potential impact of the father's family on the development of a relationship between X and her father.
The court, in its reasons, emphasised the importance of X developing a meaningful relationship with her father, while ensuring her safety and well-being. The court decided that the father should initially spend time with X in the presence of the paternal grandmother, before progressing to unsupervised visits. The court also ordered that both parents engage in therapeutic processes to improve their parenting capacities and for X to receive therapy. Injunctive orders were made to prevent further family violence. The mother was permitted to travel outside Australia with X, provided that X had spent time with the father for twelve months.
The court made orders to provide X with the opportunity to develop and foster a meaningful relationship with her father, under the supervision of the paternal grandmother and later, a professional supervisor. Both parents were required to engage in therapeutic processes to improve their parenting capacities and for X to receive therapy. Injunctive orders were made broadly in the terms sought by the Independent Children's Lawyer. The mother was permitted to travel outside Australia with X, provided that X had spent time with her father for twelve months.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons that follow, orders will be made providing X with the opportunity to develop and foster a meaningful relationship with the father. Ms Samaan will be joined as a party to the proceedings, in circumstances where the promotion of X’s best interests hinges on her initially spending time and communicating with the paternal family alone, then progressing to spending time with the father scaffolded by that family and overseen for a period by a professional supervisor. The father’s time will start with short periods, supervised by Ms Samaan and then will be unsupervised, slowly progressing to include weekend and the later holiday time. Orders will be made requiring each of the parents to engage in therapeutic processes to improve their own parenting capacities and therapy for X. Injunctive orders will be made broadly in the terms sought by the ICL. Orders will be made permitting the mother to travel outside Australia with X, on the condition that this can only occur after a period of X spending time with the father for twelve months.BACKGROUND The father was born in Country C in 1980 and is aged 42. He currently works as a tradesperson approximately 20 hours a week and receives a partial disability support pension. The father’s parents and his sister migrated to Australia in late 2022. The father now lives with them in their home in Suburb V in Sydney. The mother was born in 1990, also in Country C, and is aged 32. She currently works as a receptionist, and lives with X at an undisclosed address. The father has not known where the mother and X have lived since separation. X attends W School in Suburb Q in Sydney, where she is now in Grade 3. The parents were married in 2011 in City Y, Country C and commenced living together from that time. In the first year of their marriage, the parents struggled to fall pregnant. The mother gave evidence that she and the father attended fertility specialists in City Y and that the father was prescribed medication to assist him with his fertility. This issue caused upset and unrest between the parents. X was born in 2014. For each of the mother and father, she is a ‘miracle child’. In 2015 upon the escalation of civil unrest in their home country, the family relocated from Country C to Country D with the intention of applying for refugee status. They lived in Country D for two years before travelling to Country E in 2017, where they remained for nearly one year. One month prior to the family leaving Country E, the father’s mother (“the paternal grandmother”) came to live with the family in their home. She gave evidence as to caring for X outside Australia, as to bathing her, playing with her and taking her to the park. The parents and X left Country E for Australia in 2018. They found temporary accommodation before moving to Suburb Z the following month. The mother and X are now permanent residents of Australia. The father is an Australian citizen. As will be discussed, while in their home in Sydney in 2018, the parents engaged in an argument and an incident of family violence occurred. The mother left the family home. It became the date of final separation. X stayed with the father that night. The following day, Police collected X from the family home and took her to the mother. X has remained living with the mother since.
Evidence
Evidence Before The Court
An order was made on the last day of the trial requiring the ICL to obtain from the Court Child Expert the name and contact details of suitably qualified therapists to provide the requisite therapy and assistance for each of the mother, the father and X. An email was received from the ICL on 9 June 2023, forwarding the recommendations of the Court Child Expert as to suitable therapists. It was marked Exhibit ICL14.THE EVIDENCEThe father In the first family report, the Court Child Expert painted the following picture of the father’s presentation:28. [The father] (aged 40 years) presented as softly spoken and polite in his manner and he was focussed on being able to spend time with [X]. During his interview, [the father] appeared emotional at times when discussing his time with [X], softly crying and rubbing his eyes. [The father] was interviewed with the use of [a Language B] interpreter and the process was quite long. He said that his English is progressing slowly but that he is not currently doing any classes. This is an entirely accurate depiction of how the father presented in cross-examination: he was softly spoken, gentle-mannered, and polite. He was respectful of the Court and its processes, and rarely spoke over those asking questions of him. On the few occasions that he did, he quickly apologised and restrained himself appropriately. The father struggled to understand the meaning of simple questions put to him. At other times he made statements rather than responding to questions. I garnered the sense that these evasive answers were at least in part driven by his perception that his ‘side of the story’ had not been presented on his behalf. That said, I formed the impression that the father was doing his best, commensurate with his capacities, to engage in the trial process. He was courteous and did not respond to questions in an aggressive or impatient manner. His cross-examination lasted two full days during the 2023 trial dates. He remained composed for that time, save for on occasions where he became emotional (but in no way aggressive or impatient) and wept. Many of the questions put to the father in cross-examination by both the mother and the ICL were of complex construction for a witness with an interpreter. A significant quantity of these questions were grounded from documents in English that were not provided to the father at the time the question was asked. I had little confidence that he knew the contents of the documents grounding the questions asked. I found the father’s answers through a long cross-examination to be broadly consistent with his affidavit evidence and, for the most part, demonstrative of insight he has gained over the course of the litigation (although, as will be discussed, he still needs assistance in this area). The mother The mother gave most of her evidence through an interpreter, although she at times understood and responded to simple questions (or parts of questions) in English. She presented as thoughtful and did her best to respond to the questions asked.
Decision
Reasons for decision
Each of the parents will have the benefit of a Language B interpreter for the delivery of this judgment, to assist their legal representatives explaining to them their obligations under the orders and these reasons. They are each encouraged to obtain a translation of these reasons. CONCLUSION In the event the regime proposed by this determination fails, both parents may be confronted with unpalatable, blunt and binary options. One possible outcome is for X to continue to live with her mother, to change her name, to live anonymously and have no contact with her father. One alternative is that only way in which she might have a relationship with her father is by virtue of court order to live with him and not spend time with her mother for a restricted period. Each of the parents hold the key to avoid opening either of the doors to the extreme outcomes foreshadowed in the prior paragraph. For all of the above reasons, I make the orders as set out herein.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.