MALIK & MALIK

[2015] FamCA 311

FAMILY COURT OF AUSTRALIA

MALIK & MALIK [2015] FamCA 311

FAMILY LAW – CHILDREN – Interim parenting – Risk of harm to the child – Whether the child’s residency is to be changed on an interim basis – Whether the father’s time with the child is to be suspended

Family Law Act 1975 (Cth)

APPLICANT: Mr Malik

RESPONDENT: Ms Malik

FILE NUMBER: PAC 801 of 2010

DATE DELIVERED: 20 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Taperell Rutledge Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Dowd of Watts McCray

Orders

1. That the time the child is to spend with her father pursuant to orders of 23 March 2012 is suspended until 6 May 2015.

2. That the parties are to attend an interview with a Family Consultant and the mother is to make the child available for that interview at 9.00am on 29 April 2015.

3. That the matter is listed for mention on 6 May 2015 at 9.30am and the only issue to be considered is the suspension of the father’s time.

4. The matter is also adjourned to 12.00pm on 22 May 2015 for determination of the father’s application for interim orders on the papers only.

5. Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the child [Y born … 2005] are to be independently represented by a lawyer in these proceedings.

6. The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the child’s interests.

7. The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

8. Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he / she considers relevant to the issues before the Court.

9. Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

10. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

11. Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

12. The father’s application for costs of today be reserved.

Notation

1. That unless there is a recommendation by the Family Consultant that the time the child is to spend with her father pursuant to orders of 23 March 2012 continue to be suspended, it is expected that the time will resume under the March 2012 orders.

2. That I do not expect the Independent Children’s Lawyer will be appointed for the 6 May 2015 hearing, but request that the Legal Aid Commission give close consideration to the Independent Children’s Lawyer being appointed prior to the 22 May 2015 interim hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malik & Malik 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 PARRAMATTA

FILE NUMBER: PAC 801  of 2010

Mr Malik

Applicant

And

Ms Malik

Respondent

REASONS FOR JUDGMENT

1. In this matter there has been an application made by the father to change residence of a nine year old child on an interim basis in the context where it is undisputed that final orders were made on 23 March 2012 under which the child was to live with the mother and spend time with the father.  It is also not disputed that the child has not spent time with the father since September of last year, in other words, a little over seven months.

2. In the circumstances, I have been able to arrange on an urgent basis for the child to be seen by the Family Consultant next week and that the matter can be listed for a mention and the mother has conceded that she will accept that unless there is a contraindication after that initial interview with the Family Consultant that the child’s time with the father should resume.

3. It is in circumstances where there does not seem to be any dispute that the mother effectively has gone into hiding though she has belatedly said that she will indicate where she is residing.  She removed the child from her usual school and also removed herself from the Newcastle area contrary to those final orders two weeks prior to the Easter holidays and is in the process, as I understand it right now, of having the child enrolled in a school presumably in the Sydney area.  She has indicated, however, that she will return to the Newcastle area forthwith and will re-enrol the child in her former school immediately to commence tomorrow.

4. The mother has sought to suspend the father’s time with the child until the Family Consultant has interviewed the parties.  It is put on her behalf that there are quite dramatically competing contentions about why the child has not spent time with the father over last seven months and that in effect it is better to err on the side of caution because one thing is not in doubt and that is that the child has not spent any time with the father for seven months and that in itself will represent quite a significant change in circumstances, be as it may, as to how those circumstances came about.

5. The father in effect says that the child has been under the influence of the mother for the last seven months and that spending some time with the father prior to the Family Consultant’s interview which would be a short overnight time plus a weekend time would put the child in a position where her input to the Family Consultant would be based on some recent time with the father.

6. The purpose of the Family Consultant’s interview is to identify the issues, it is not an evidence gathering exercise and certainly the issue of influence or otherwise or alienation which I understand is being contended by the father, is something that will be able to be assessed by a qualified Family Consultant.  A child of this age does not need to spend time with the father in order for her views or her feelings or the issue of influence to be established or in order for some valid conclusions to be drawn.  A child should not be put in the position that in effect the purpose for some time with the father is, somehow, to assist in the father’s case.

7. That is not to say for one moment that I am not critical in a broad sense of the way that the mother has gone about doing what she is doing, particularly that she in effect went into hiding, and took the child out of school.  Even if she has some argument about the safety of the child which I understand she is going to, she certainly has certainly gone about it not in a child focussed way.  I do not, however, think it appropriate to compound the potential harm to the child by requiring her to spend some time with the father because in effect the father feels significantly aggrieved and it might be perfectly legitimate for him to feel aggrieved but that is not the way to remedy that especially in circumstances where next week there is an appointment with the Family Consultant.

8. In those circumstances, in my view it is in the best interests of the child on the limited information available for orders to be made to suspend time with the father for that short period of time.

9. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 April 2015.

Associate: 

Date:  30 April 2015