Masih and El Saeid (No 2)

[2019] FamCA 534

FAMILY COURT OF AUSTRALIA

MASIH & EL SAEID (NO. 2) [2019] FamCA 534

FAMILY LAW – CHILDREN – Where the children had not been spending time with the father as per existing parenting orders – Where the father filed an application seeking machinery orders to enforce those existing orders – Where it was submitted on behalf of the father that those existing orders did not require the mother to cause the children to spend time with the father and that it was necessary to impose the obligation of compliance on the mother and children – Application granted – Machinery orders made to clarify and enforce the parties’ obligations under the existing parenting orders – Recovery Order to issue and make up time to commence in the event of further non-compliance.

APPLICANT: Mr A Masih

RESPONDENT: Ms El Saeid

INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins

FILE NUMBER: SYC 2986 of 2012

DATE DELIVERED: 26 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT: Mr Freidlander

SOLICITOR FOR THE RESPONDENT: Sharah & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC2986 of 2012

Mr A Masih

Applicant

And

Ms El Saeid

Respondent

REASONS FOR JUDGMENT

1. On 23 July 2019, the father’s Application in a Case in respect of final parenting orders made on 16 April 2019 was heard and certain orders were made.

   1.By way of machinery/enforcement orders, the Orders dated 16 April 2019 as amended by the Orders dated 20 May 2019 be varied as set out in the following orders.

   2.The children spend a continuous time with the father between 10.00 am Saturday 10 August 2019 and 10.00 am Saturday 17 August 2019 with the mother to deliver the children to the father’s residence at the commencement of the time and the father to deliver the children to the mother’s residence at the conclusion of the time.

   3.Thereafter the children spend time with the father in accordance with the Orders dated 16 April 2019 noting that the father’s first period of time with the children pursuant to Order 6(a) shall commence at 4.30 pm on Friday 23 August 2019 when the mother shall deliver the children to the father’s residence at 4.30 pm and secondly the father’s first time with the children pursuant 6(b) shall commence at 4.30 pm on Thursday 29 August 2019 when the mother shall deliver the children to the father’s residence.

   4.In the event the mother fails to comply with these Orders by not complying with Order 7 and/or by not delivering the children into the father’s care and/or the children do not spend all of the time with the father pursuant to each of Orders 2 and 3 above then pursuant to s 67U of the Family Law Act 1975 (Cth) a Recovery Order be issued authorising/directing the Marshal, or officers of the Australian Federal Police and all officers of the Police Forces of the State and Territories of the Commonwealth of Australia, with such assistance as may be required and if necessary by force:

   4.1To find and recover the children, R (male) born in 2006 and Q (male) born in 2009 (“the children”);

   4.2To deliver the children to the father at DD Street, Suburb FF, or such other place as the father and the person effecting such Recovery Order agree to be appropriate; and

   4.3To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.

   5.Upon a Recovery Order being executed pursuant to Order 4 the children shall spend a continuous period of six (6) weeks with the father in lieu of each period of time contemplated by Order 2 and/or 3 and/or as a consequence of the mother’s failure to comply with Order 7 commencing from the time that the children are delivered into the father’s care and ending six (6) weeks following that event when the father shall deliver the children back to the home of the mother.

   6.For the purpose of implementation and compliance with Orders 2 and 3 above, the mother is directed to immediately advise the children that if she does not comply with Order 7 or if they do not comply with Orders 2 and/or 3 then the effect of Orders 4 and 5 is that they will be immediately placed in the father’s care for a continuous period of six weeks (6) from the date of default and for each subsequent period of default covered by Order 3 and the Orders made 16 April 2019.

   7.By way of further implementation and compliance with these Orders the mother is directed to cause the children to be delivered to the counselling section of the Family Court, Level 2, 97-99 Goulburn Street, Sydney at a date and time to be notified to the parties for the purpose of a Family Consultant explaining these Orders to the children including to advise the children that it is not for the children to choose whether they comply with these Orders and if they do not spend time with their father in accordance with these Orders then they will be placed in the father’s care for a period of six (6) weeks.

   8.During the period the children spend time with the father pursuant to Order 2 herein or Order 5 herein the mother is restrained from contacting the children or the children’s school in any way including by telephone, text message and any form of electronic or social media communication including attending at their school.

   9.The father, mother, Independent Children’s Lawyer, the Marshal and the NSW and Federal Police be granted liberty to restore the matter to the list on 24 hours notice in the event of non-compliance with these orders including for the purpose of having the mother dealt with for Contravention and or Contempt.

   10.The solicitor for the father shall notify the children’s therapist Mr CC of the orders made today and the therapist is to convey the import of those orders to the children.

   In relation to the Application in a Case filed on behalf of the father on 19 June 2019 and the Application in a Case filed on behalf of the mother on 19 July 2019 to re-open the proceedings - judgment is reserved.

2. On the same day, there were proceedings between the father and the mother and others, commenced by application to re-open in respect of a threshold issue in proceedings for property settlement in respect of which judgment was reserved.  After the parenting application was heard but before the hearing commenced on the financial issues, the Independent Children’s Lawyer (ICL) was excused.

3. What follows are the reasons for the parenting orders made on 23 July 2019.

The Application Before The Court

1. The father sought orders in terms of a minute of orders which contained orders similar to the orders ultimately made by me.  As well as an order for indemnity costs, the father sought orders which provided for a timetable which included earlier dates than those set out in paragraphs 2 and 3 of the orders that I eventually made.

Background Facts

1. On 16 April 2019 final orders were made in parenting proceedings between the father and the mother.  Those orders provided as follows:

   1.All existing parenting orders are discharged.

   2.The mother shall have sole parental responsibility for R born in 2006 and Q born in 2009 (“the children”).

   3.The mother shall:

   (a)notify the father at the earliest practical time of any major decisions to be made in relation to the health, education or change of religious observance for the children or either of them; and

   (b)take any views offered by the father in relation thereto, into account; and

   (c)advise the father as soon as practicable of the decision she has made on that issue.

   4.The children shall live with the mother.

   5.For a period of two months commencing from the date of these Orders the children spend time with the father as follows:

   (a)From 10.00 am to 2.00 pm each Sunday;

   (i)that time shall commence by the mother delivering the children to a Contact Centre as agreed between the parties at the time required before the commencement of each occasion.

   (ii)that time shall conclude by the father delivering the children to the Suburb V home or such other venue as is agreed between the parties.

   (b)from after school to 7.30 pm each Wednesday;

   (i)that time shall commence by the father collecting each child after school, from the school premises;

   (ii)that time shall conclude by the father delivering the children to the Suburb V home or such other venue as is agreed between the parties.

   6.As and from the conclusion of the period during which Order 4 applies the children shall spend time with the father as the parents may agree but in default of any agreement during school term:

   (a)from after school each alternate Friday until the commencement of school on the following Monday or if Monday is not a school day, on the following Tuesday;

   (i)that time shall commence by the father collecting each child after school, from the school premises;

   (ii)that time shall conclude by the father delivering the children to their school or respective schools.

   (b)from after school each alternate Thursday, being the Thursday immediately following the Monday/Tuesday referred to in (a) until the commencement of school on Friday; 

   (i)that time shall time commence by the father collecting each child after school, from the school premises;

   (ii)that time shall conclude by the father delivering the children to their school or respective schools.

   7.The mother is restrained from attending at the children’s schools at or near the time the father is to collect the children from school pursuant to these Orders.

   8.Commencing with the July school holidays in 2019, the children shall spend time with the father during school holidays as the parents may agree but in default of any agreement that will be for the first half of each of the shorter school holiday periods and on a week about arrangement during the December/January school holidays.  Unless the parents otherwise agree the children will spend the first week of the December/January school holidays with the mother.

   (i)That time shall commence by the father collecting each child after school, from the school premises on the last day of school before the commencement of the shorter school holidays and by the mother delivering the children to the father at his home or such other venue as is agreed between the parents at the commencement of each of his weeks of the December/January school holidays;

   (ii)That time shall conclude by the father delivering the children to the Suburb V home or such other venue as is agreed between the parents.

   9.The parents shall facilitate the children’s attendance with a therapist agreed between the parties and the father and mother shall follow the directions of that therapist in relation to the duration and frequency of the children’s appointments with the therapist, it be noted that if possible a therapist from the children’s social and religious background shall provide such therapy.

   10.Each parent is restrained from denigrating the other parent to or in the presence or hearing of the children or either of them.

   11.Each parent is restrained from striking the children or either of them.

   12.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   13.Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to amending the wording of these Orders.

2. The children spent a few hours with the father on Wednesday, 1 May 2019.  On 20 May 2019, the orders were amended in an effort to facilitate the children’s time with the father.  Those orders were as follows:

   1.By way of machinery orders the orders of 19 April 2019 are varied to the following effect:

   (5)For a period of two months commencing on 20 May 2019 the children spend time with the father as follows:

   (a)From 10.00 am to 2.00 pm each Sunday;

   (i)that time shall commence by the mother delivering the children at her home to the agents of W Centre or of such other professional supervision agency as is retained by the father at the commencement of each occasion;

   (ii)that time shall conclude by the father delivering the children to the Suburb V home or such other venue as is agreed between the parties.

   (b)from 4.30 pm after school to 7.30 pm each Wednesday;

   (i)that time shall commence by the mother delivering the children at her home to the agents of W Centre or of such other professional supervision agency as is retained by the father at the commencement of each occasion;

   (ii)that time shall conclude by the father delivering the children to the Suburb V home or such other venue as is agreed between the parties.

   2.For the avoidance of doubt, beyond the delivery of the children to the father at the commencement of each period, there is no requirement for the children’s time with the father pursuant to paragraphs (5)(a) and (b) to be supervised.

   3.An order is made in terms of the document “Orders” (Exhibit 3 dated 20 May 2019), as set out hereunder:

   1.Upon the Independent Children’s Lawyer nominating a psychologist to provide therapy for the children, the father and mother shall do all acts and sign all documents necessary within 14 days to facilitate such therapy.

   4.Leave is granted to either party to restore the matter to the list on giving 48 hours’ notice to each other, the Independent Children’s Lawyer and the associate to Justice Loughnan.

3. Notwithstanding the amended orders, there has been no time between the children and the father since 1 May 2019.  Indeed, on the first occasion appointed under the orders of 20 May 2019, when the supervisor arrived to collect the children, they were in their pyjamas.

4. It was submitted on behalf of the father that:

   ·firstly, the current orders did not require the mother to cause the boys to spend time with their father;

   ·secondly, that the boys apparently had the impression that the ordered time was optional; and

   ·thirdly, it is necessary to impose the obligation of compliance on the mother and to ensure that she and the boys understand that the orders must be complied with.

5. The mother opposed the orders sought by the father.  It was submitted on behalf of the mother that the family therapy in train pursuant to the orders of 16 April 2019 and 20 May 2019 should be allowed a chance to take effect.

6. After exhaustive and exhausting litigation, orders have been made to restore a regular and close relationship that existed between the children and their father.  That relationship involved a shared care arrangement whereby the father spent time with the boys unsupervised and overnight for about five years after the parents separated.

7. The father has appealed against the parenting orders made on 16 April 2019.  There was no cross-appeal by the mother.  It follows that she contends that the orders of 16 April 2019 are appropriate.

8. No stay has been sought in relation to the orders and it is the Court’s obligation to enforce them.  As with the determination of the substantive parenting issues, in relation to the enforcement of parenting orders, the best interests of the children is the paramount consideration.

9. In the substantive proceedings, I found that the mother’s final parenting proposals were inconsistent with her having any genuine concern about the safety of the children in the care of the father.  The mother would not expect the children to make the decision to spend time with the father if there was a likelihood of any harm coming to them as a consequence of spending that time.  I accepted Dr AD’s opinion that it was unlikely that the relationship between the boys and their father had been seriously affected by violence.  I found that there was a risk that there had been violence inflicted on the mother by the father but that the risk was low.

10. In the substantive proceedings, I rejected the parents’ respective proposals that would have the likely outcome that the children would be denied a relationship with one of their parents.  I also found it likely that the mother had not fully supported the relationship between the children and the father. 

11. As to the family therapy, I was told that there had been four sessions with the counsellor, Mr CC, but that the sessions had not yet progressed so as to involve the father.  However, as was submitted on behalf of the father, the therapy was commissioned to operate in train with the resumption of the father’s time and not as a condition precedent to it.  The ICL spoke briefly to the therapist on the morning of 23 July 2019, but no further intelligence resulted from their communication.  That said, I was not told that Mr CC had abandoned hope in relation to his therapy.

12. The key element of the father’s proposals is to impose an obligation on the mother that would make her responsible for effect being given to the orders and to send a clear message to her and to the boys that the orders are not optional.

13. As I said during submissions, I am not normally attracted to the idea of children being visited with responsibilities for compliance with parenting orders.  Indeed, one would normally wish that the message from the parents was, “Your father and I want you to spend time with him”, rather than, “You must comply with Court orders.”  Here, however, it is fanciful to imagine that there could be a joint message from the parents to the children, and the likelihood is that the mother will not willingly and wholeheartedly endorse the orders to facilitate time with the father.  Indeed, there is some logic to the father’s proposals because of the mother’s approach.  It is the mother’s contention that she did all she could over recent years to cause compliance with Court orders and she was unable to achieve it.  It is her case that this is the one area of the boys’ lives in which she is unable to influence their behaviour. 

14. The s 60CC Family Law Act 1975 (Cth) findings set out in the reasons for judgment in the substantive proceedings remain apposite. My course has been set, and I am reluctant to simply abandon the aims of the April orders. Once again, with these proceedings, it was left to the father to take action to enforce parenting orders made. Presumably, the mother has been advised that an obvious alternative to the orders of the type with which she has steadfastly not complied, is a change of residence. Potentially, the mother has as much to lose as the father if the current orders are not complied with, and perhaps more.

1. I have decided to interfere with the timetable proposed on behalf of the father, to delay that timetable by two weeks so as to give another opportunity for the consequences of noncompliance to be reinforced with the mother and for them to be brought home to the children through a family consultant, the ICL and the therapist, Mr CC. 

2. The trigger for the issue of a Recovery Order in the orders proposed on behalf of the father is the mother failing to comply with the orders by not complying with Order 7 and/or by not delivering the children into the father’s care and/or, in any event, by the children not spending all of the time with the father pursuant to paragraphs 2 and 3 of the proposed orders.  In the event that it becomes necessary for the father to request the execution of a Recovery Order, the mother will be served with the father’s evidence of noncompliance.  She should anticipate having only short notice before that request is determined.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 26 July 2019.

Associate: 

Date:  12 August 2019