Maziar and Maziar

[2017] FamCA 810

FAMILY COURT OF AUSTRALIA

MAZIAR & MAZIAR [2017] FamCA 810

FAMILY LAW – CHILDREN – Parental responsibility – Where consent orders were made to settle the parties’ dispute about all issues other than the allocation of parental responsibility – Where the allocation of parental responsibility is the only issue requiring judicial determination – Where there are reasonable grounds to believe the mother, but quite possibly also the father, engaged in family violence – Where the parties cannot communicate effectively – Concluded the children’s best interests would not be served by an order for shared parental responsibility – Where the parties agreed the children should live with the mother – Ordered the mother have sole parental responsibility for all major long-term issues related to the children

Family Law Act1975 (Cth) ss 4, 4AB, 60B, 61B, 61C, 61D, 61DA, 64B, 65D, 65DAA, 65DAC, 65DAE

Lokare & Baum [2016] FamCAFC 135
Newlands v Newlands (2007) 37 Fam LR 103

APPLICANT: Ms Maziar

RESPONDENT: Mr Maziar

FILE NUMBER: MLC 6607 of 2016

DATE DELIVERED: 15 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Austin J

HEARING DATE: 14 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thompson

SOLICITOR FOR THE APPLICANT: Melbourne Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr Kovacs

SOLICITOR FOR THE RESPONDENT: Avesta Lawyers

Orders

1. The mother shall have sole parental responsibility for all “major long-term issues” (as defined in the Family Law Act 1975 (Cth)) in respect of the children:

   (a)       B, born … 2009; and

   (b)       C, born … 2012.

2. The mother is restrained from causing or permitting the children to be identified by any other surname.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

4. Any and all other outstanding applications are dismissed.

Notations

(A)In all other respects, the orders made between the parties in respect of the children on 14 October 2016 (as amended under the slip rule on 25 October 2016) shall continue to apply.

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 Maziar & Maziar 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 MELBOURNE

FILE NUMBER: MLC 6607 of 2016

Ms Maziar

Applicant

And

Mr Maziar

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the two young children of the applicant mother and respondent father, who are now aged eight and five years respectively.

2. Pursuant to parenting orders made in October 2016, the children now live with the mother in Australia. The father still lives in the United Kingdom (“UK”) and the orders provide for the children to spend time with him in Australia and the UK and to also communicate with him regularly. Those orders were made with the parties’ consent.

3. The only residual issue requiring judicial determination is the manner in which parental responsibility for the children should be allocated.

History

1. The mother was born in the UK and the father migrated to the UK from the Middle East in 2000, so they are both UK citizens.

2. They commenced cohabitation in 2002 and married in 2004. Their children were born in the UK in 2009 and 2012. The family relocated from the UK to Australia in 2013 on temporary visas. The parties disputed whether their relocation was intended to be permanent or temporary, but it is unnecessary to decide that factual dispute because it now makes no difference.

3. Within only weeks of their arrival in Australia, the father needed to return alone to the UK to complete his training, but he remained in the UK much longer than expected. He did not return to Australia until December 2014. By that time, the parties’ marriage was foundering. The mother alleged they finally separated in January 2015, though that was denied by the father.

4. The father took the youngest child to the United States of America (“USA”) to visit family members in May 2015. The youngest child fell ill and so the mother took the eldest child to the USA with her to bring the youngest child home. Once there, the parties agreed the eldest child would remain with the father in the USA for a little longer and the mother would return to Australia with only the youngest child. However, instead of later returning to Australia as agreed, the father took the eldest child to the UK. He informed the mother he and the eldest child would remain permanently in the UK unless she agreed to reconcile the marriage with him. The mother initiated proceedings under the 1980 Hague Convention and a UK court ordered the eldest child’s return to Australia. The eldest child arrived back in Australia alone in September 2015. The father remained in the UK.

5. The mother instituted these proceedings in July 2016, seeking parenting orders in respect of the children. Orders were consensually made by Bennett J on 14 October 2016 resolving all but one aspect of their dispute. They could not agree about the allocation of parental responsibility for the children and so, in respect of that issue, an order was made in the following terms:[1]

   The competing final applications for parental responsibility (excluding changing the family name of the children which shall remain joint) be placed in the list of cases awaiting allocation to a judicial docket.

   [1] Order 12 made on 14 October 2016

6. That was the solitary issue listed for determination by trial in September 2017.

7. It was somewhat curious the parties settled the dispute over the children’s residence with the mother and the circumstances under which they would spend time and communicate with the father, without any ancillary agreement or antecedent determination about the allocation of parental responsibility for the children, but that was the course they chose.

Proposals and evidence

1. The mother moved on the Amended Application she filed on 28 July 2017 and she relied upon her affidavit filed on 28 July 2017.

2. The father moved on the Amended Response he filed on 18 August 2017 and he relied upon his affidavit filed on 18 August 2017.

3. Apart from orders allocating parental responsibility, both parties sought additional orders which were intended to amend those made with their consent in October 2016. They each sought different orders regulating the children’s communication with the father and, additionally, the mother sought that the father be made to incur a greater share of the cost of the children’s airfares, in default of which the children need not visit him. Their applications in those respects were misconceived. The orders made in October 2016 were intended to finally settle those disputes and, although each expressed some level of dissatisfaction with the operation of the orders over the past 11 months, there was no warrant to re-open the disputes when there was no consensus about the manner of their resolution. The trial was confined to only the resolution of the residual dispute concerning the allocation of parental responsibility. It was not an opportunity for them to roll back time and re-visit the terms of their former consent. When challenged with that proposition at the commencement of trial, each party accepted that to be so.

4. As a consequence, the mother only sought an order granting her sole parental responsibility for the children, whereas the father sought an order for the parties to have equal shared parental responsibility for the children.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

3. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA), unless the parents reach agreement otherwise (s 65DAA(6)), as they did in this case.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply in this case because there are reasonable grounds to believe that, at least the mother but quite possibly also the father, engaged in family violence (s 61DA(2)(b)).

2. The father alleged the mother once threw a mobile telephone at him, but it missed him and instead struck the paternal grandmother on the wrist causing her to sustain a painful bruise.[2] The mother admitted the allegation during her cross-examination, though she later unsuccessfully tried to resile from her earlier admission that she intentionally threw the telephone at the father to avoid him grabbing her. In all probability, she did as she first said, in which case the incident occurred in hostile circumstances, amounted to an assault, and was therefore an episode of “family violence” (s 4AB).

   [2] Father’s affidavit, para 31(e)

3. The mother conversely alleged the father perpetrated “family violence”, which he denied. They often argued as their marriage was failing and the mother alleged the father once pushed her against a wall and, on other occasions, threw objects in anger.[3] While the father expressly denied those allegations in a generic sense,[4] he added he had “never laid a finger” on the mother,[5] which implied he equated family violence with physical assaults. Of course, the definition of family violence is much broader and encompasses any form of oppressive behaviour that coerces or controls the family victim or causes the family victim to subjectively feel fearful (s 4AB(1)). As an example, threats to and repeated derogatory taunts of another family member may capably amount to family violence (s 4AB(2)). Significantly, the mother alleged the father has sent her “abusive and insulting messages”, he continues to be “very abusive” towards her, and has verbally abused her by calling her a “slut”.[6] The father did not expressly deny those allegations and the mother affirmed her evidence when challenged about it in cross-examination. Acceptance of her evidence in that respect would be sufficient to prove the father’s commission of family violence.

   [3] Mother’s affidavit, para 8

   [4] Father’s affidavit, para 31(e)

   [5] Father’s affidavit, paras 31(e), 31(aa), 32(a)

   [6] Mother’s affidavit, paras 17, 31, 34

4. Even if, contrary to the first finding about family violence, the presumption of equal shared parental responsibility still did apply, the evidence surely rebutted the presumption because the evidence revealed the children’s best interests would not be served by such an order (s 61DA(4)).

5. The parties agree the communication between them is poor.

6. The mother deposed:[7]

   The communication between me and [the father] is very poor. I have no confidence that we would be able to consult with each other and that [the father] would make any genuine attempt to consult with me on matters impacting on the children.

   [7] Mother’s affidavit, para 31

7. In cross-examination, the mother said words to the effect “we can’t even have a civilised conversation about a small matter”, which evidence hung ominously over the father because he did not try to dispute the truth of that observation. On the contrary, his evidence only served to emphasise the fact.

8. The father deposed:[8]

   …I admit that communication with [the mother] with respect to the children is very poor.

   [8] Father’s affidavit, para 31(x)

9. During his cross-examination, he complained repeatedly about the mother’s turpitude and could not even bring himself to concede she is a good mother.

10. While each party tended to blame the other for the predicament of their lack of co-operation, any attempt to apportion blame is futile because the result is the same regardless. The parties cannot communicate effectively. But effective communication is integral to the success of shared parental responsibility for the children. If parental responsibility is shared, the law requires the parties to consult and make a genuine effort to compromise their dispute over any “major long-term issue” related to the children in order to maximise the chances of them eventually reaching consensus (s 65DAC). In the event of an impasse between them, the only solution would be the advent of more litigation to judicially determine the contentious issue, which should ideally be avoided.

11. The prospect of the parties’ disagreement over the children is far from a mere hypothesis. The problem is real. Their communication in the past has failed and they are in deadlock again now.

12. Some months ago, the mother sent the father emails imploring him to communicate with the children because they missed him.[9] She gently chided him for ignoring them, since the orders made in October 2016 provided for them to speak with him by Facetime or telephone every second day,[10] and encouraged him to prioritise the children’s interests. In response, the father simply criticised her,[11] but he failed to resume his communication with the children. He admitted in cross-examination that he was too “sad and upset”. As a consequence, at the father’s election, the children did not see or hear from him for about four months. He did not resume his communication with the children until after their visit to see paternal family members in the USA in July 2017. That was a perfect example of the mother consulting with the father over an issue of vital importance to the children’s interests and his refusal to engage constructively with her. His protestation during cross-examination of him “co-operat[ing] with everything” was demonstrably untrue.

    [9] Exhibit M1

    [10] Order 4(c) made on 14 October 2016

    [11] Exhibit M1

13. Currently, the parties disagree over the children’s citizenship, which is another issue of fundamental significance for the children. Although the orders made in October 2016 now provide for the children to live with the mother in Australia, there is disharmony over their citizenship. The bridging visas formerly issued to the mother and children have been replaced by their grant of permanent residence in Australia,[12] though that was initially opposed by the father.[13] Now, the mother wants to obtain Australian citizenship for both her and the children,[14] but the father is stoutly opposed to the children having Australian citizenship.[15]

    [12] Mother’s affidavit, paras 21, 26

    [13] Mother’s affidavit, para 23

    [14] Mother’s affidavit, para 27

    [15] Mother’s affidavit, para 22; Father’s affidavit, para 31(r), 31(t)

14. The mother deposed she and the children are settled in Australia[16] and it is plainly her intention to remain here permanently. She alleged the parties decided to migrate to Australia in 2013,[17] though the father maintained they had no such agreement about permanence. The mother now has a new partner in Australia, with whom she cohabits. She has a third child to that partner and she is now pregnant with her fourth child. Presently, the father remains a permanent resident of the UK. He deposed to his “hope” of relocating to Australia to be closer to the children after the sale of the parties’ property in the UK,[18] but the property was sold in April 2017[19] and he still remains in the UK. The sale is not yet complete, but the father gave no evidence of any formative plans to relocate to Australia. Instead, he only deposed it is “not easy” for him to move here.[20] In such circumstances, the father’s relocation to Australia remains a mere possibility and it seems highly unlikely the parties would be able to compromise their dispute over an application for the children’s Australian citizenship.

    [16] Mother’s affidavit, para 19

    [17] Mother’s affidavit, para 4

    [18] Father’s affidavit, paras 24, 31(v), 32(c)

    [19] Father’s affidavit, para 31(aa)

    [20] Father’s affidavit, para 31(y)

15. Those instances of the parties’ past and present disagreement over important issues related to the children exemplify why it is desirable for one party to have exclusive parental responsibility for the children. Given the parties’ agreement for the children to live with the mother, as reflected in the existing orders made in October 2016, it would be absurd for her not to be allocated exclusive parental responsibility. The father’s opinion that it would be “fair” for the parties to share parental responsibility is unconvincing to say the least.

16. However, the mother’s allocation of exclusive parental responsibility should be limited in two respects.

17. First, she should only have exclusive parental responsibility in respect of “major long-term issues” (as defined in the Act) related to the children. That way, as their other parent, the father would retain parental responsibility for the day-to-day aspects of their care when they are spending time with him. That residual form of parental responsibility remains in place under the Act because it is not displaced by contrary order (ss 61C, 61D; Newlands v Newlands (2007) 37 Fam LR 103 at [89]-[91]).

18. Second, given the terms of the order made in October 2016, which reserved the decision about the manner in which parental responsibility would be allocated, expressly preserved the parties’ “joint” parental responsibility in respect of the children’s names, the mother’s investiture with parental responsibility will be subject to another order restraining her from unilaterally changing the children’s surname. That will help preserve their paternal identity.

19. The father balefully declared his belief that, without an order for “joint parental responsibility”, the mother will not ensure the children have meaningful relationships with him,[21] but his belief is erroneous. The mother accepts the children have meaningful relationships with him, from which they derive benefit. Unless she believed that, it is difficult to conceive why she agreed to the orders made in October 2016 which provided for the children to spend time with him, both in Australia and the UK, and to communicate with him several times each week. The allocation of parental responsibility for the children is unconnected to the quality of their relationships with their parents. They are separate issues.

    [21] Father’s affidavit, para 32(b)

1. The father considered his proposal for equal shared parental responsibility found strength from the objects and principles of Part VII of the Act (s 60B), but they only provide context to the legislative purpose and do not pare back the imperatives which find clear expression in ss 61DA and 65DAC of the Act (see Lokare & Baum [2016] FamCAFC 135 at [78]-[81]).

2. The father orally applied for further injunctions to be made restraining the mother from allowing the children to receive religious instruction or to attend religious schools, to which broad propositions she agreed in cross-examination, but no such orders are made. No evidence about the issue was adduced by the father, either in-chief or in cross-examination; no application for such orders was foreshadowed by the father, either orally or in writing, before the trial commenced; and the issue only arose unexpectedly during the mother’s cross-examination, giving her no real opportunity to consider in a timely way the potentially far-reaching implications of the proposal. She was deprived of procedural fairness and the orders are not made.

3. In all other respects, the orders made with the parties’ consent in October 2016 will continue to bind the parties.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 September 2017.

Associate:

Date:  6 October 2017