FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Meftah & Tamimi [2021] FedCFamC1F 137
File number(s): PAC 2463 of 2020 Judgment of: HANNAM J Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – CHILDREN – Interim Parenting – Review of a Registrar’s Decision – Where final orders were made in June 2020 which saw the child live with each parent on a week/week basis – Where the father withheld the child for extended periods of time following final orders being made – Where the mother re-opened proceedings following the father’s non-compliance – Where interim orders were made with the consent of the parties providing the child live with the father and spend day time only with the mother – Where following interim hearing orders were made by a Registrar which maintained that arrangement – Where the mother seeks a Review of that decision and seeks that the child live with her and spend time with the father on alternate weekends – Where the mother seeks that a Recovery Order issue if the father does not return the child to the mother’s care – Where the father seeks that the current orders are not disturbed – Where the child has made a disclosure of sexual abuse perpetrated by the mother’s partner – Where the father contends the child is at risk of sexual abuse if the child is to live with the mother – Where the father contends the risk is mitigated if the child does not spend overnight time with the mother – Where the child’s disclosure was investigated by JCPRP who found that it “had not occurred” – Where the mother contends that the father poses a risk of harm to the child due to family violence – Where the mother contends that such risk is mitigated if the child’s overnight time with the father is limited to alternate weekends and changeover to occur at day-care – Where there is a significant history of parental conflict at changeover events – Where it is unlikely that a court will be satisfied at final hearing that the sexual abuse of the child occurred – Where it is likely to be found that the father has perpetrated family violence including coercive control – Where orders are made as sought by the mother Legislation: Family Law Act 1975 (Cth) s 60CA, 60CC, 67U, 67V, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07(1)
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
Mazorski & Albright [2007] FamCA 520McCall & Clark [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 146 Date of hearing: 17 September 2021 Place: Sydney Counsel for the Applicant: Ms Seric Solicitor for the Applicant: Austin Giugni Martin Pty Ltd Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Abbas Jacobs Lawyers Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
PAC 2463 of 2020 FEDERAL CIRCUIT…
Continue reading Meftah & Tamimi
Sign in free to access the full text
Details
- AGLC
- Meftah & Tamimi [2021] FedCFamC1F 137
- Case
- [2021] FedCFamC1F 137
- Decision Date
CaseChat Overview and Summary
The matter involves a dispute between the father and the mother concerning the interim parenting arrangements for their child. The father seeks the dismissal of the mother's application for review and the continuation of the existing interim parenting orders as determined by the Senior Registrar. The parties, who began their relationship in 2011, have a child born in 2017. The mother took six months of maternity leave, during which she was the primary carer for the child. Post her return to work, the care arrangements were disputed, with the father claiming primary carer status and the mother asserting the paternal grandmother provided significant assistance. Following their separation in December 2019, there were allegations of serious family violence from both parties and several incidents led to criminal charges and the issuance of Apprehended Domestic Violence Orders.
The court was tasked with deciding the weight to be given to the father's past conduct, particularly his history of withholding the child from the mother contrary to court orders, and the implications for the child's safety and well-being. The court also considered the father's capacity to meet the child's emotional and psychological needs and the broader best interests of the child in light of the allegations of family violence. In reaching its decision, the court attached significant weight to the father's conduct and the risk of non-compliance with court orders, leading to the conclusion that a Recovery Order was necessary to ensure the child's return if the father defaults. The court ultimately determined that the proposed orders by the mother were in the best interests of the child, taking into account the need to protect the child from family violence and other relevant factors.
The court's reasoning led to the conclusion that the orders proposed by the mother were appropriate, considering the best interests of the child. These orders included the dismissal of the father's application for review and the continuation of the interim parenting arrangements as previously determined. The court also issued a Recovery Order to ensure the child's return if the father defaults, which would remain in effect for 12 months. This order was seen as a necessary measure to protect the child from potential non-compliance by the father and to provide the mother with a means to secure the child's return in future instances of non-compliance. The final orders, as outlined in the court's reasons, were designed to safeguard the child's welfare and address the concerns raised by both parties.
The court was tasked with deciding the weight to be given to the father's past conduct, particularly his history of withholding the child from the mother contrary to court orders, and the implications for the child's safety and well-being. The court also considered the father's capacity to meet the child's emotional and psychological needs and the broader best interests of the child in light of the allegations of family violence. In reaching its decision, the court attached significant weight to the father's conduct and the risk of non-compliance with court orders, leading to the conclusion that a Recovery Order was necessary to ensure the child's return if the father defaults. The court ultimately determined that the proposed orders by the mother were in the best interests of the child, taking into account the need to protect the child from family violence and other relevant factors.
The court's reasoning led to the conclusion that the orders proposed by the mother were appropriate, considering the best interests of the child. These orders included the dismissal of the father's application for review and the continuation of the interim parenting arrangements as previously determined. The court also issued a Recovery Order to ensure the child's return if the father defaults, which would remain in effect for 12 months. This order was seen as a necessary measure to protect the child from potential non-compliance by the father and to provide the mother with a means to secure the child's return in future instances of non-compliance. The final orders, as outlined in the court's reasons, were designed to safeguard the child's welfare and address the concerns raised by both parties.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The father seeks that the mother's application for review be dismissed and that the interim parenting arrangements for the child remain as provided for under the orders made by the Senior Registrar. BACKGROUND The parties began living together in 2011 when the mother was aged 17 and the father was 32. They are now aged 27 and 41 respectively. It is apparent from police records and the Magellan Report[1] that the father has two daughters from a previous relationship ("the father's daughters") who are now aged 10 and 13. Although each party makes some reference to the father's daughters being present at certain events following separation, no information has been provided to the Court by the parties about the care and living arrangements of these children during the parties' relationship. [1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department of Communities and Justice (“the Department”) with the family. During the parties' relationship the mother worked as a health professional. The father has been unemployed since 2015 and is in receipt of Centrelink payments. The parties' only child was born in 2017. The mother took six months maternity leave following the birth of the child and there appears to be no dispute that she was his primary carer at this time. The parties depose to differing care arrangements for the child once the mother returned to work. It is asserted by the father that he was the primary carer, while the mother submits that significant assistance in the child's care was provided by the paternal grandmother. When the child was one year old he started attending day-care three days per week and was cared by for the father and paternal grandmother on the remaining two days while the mother was at work. There is significant dispute about the nature of the parties' relationship and the reasons for separation with each of them making allegations of serious family violence perpetrated by the other. However, it is agreed that final separation occurred in December 2019. It is asserted by the mother that at final separation she left the former family home with the child and began living in rented premises and that the child spent time with the father a few times per week. The father asserts that the child remained living with him and spent time with the mother. Very limited information has been provided by the parties about their domestic circumstances otherwise following separation though it is apparent that the father has remarried. It is common ground between the parents that following separation there were several incidents which resulted in one or other of them being charged with criminal offences and Apprehended Domestic Violence Orders ("ADVO"s) being made for the protection of the other party. Requests were made by this Court that the relevant Local Court provide the files in relation to these matters. Each of the parties are defending the charges they are facing and the hearings are yet to occur.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
I am of the view that weight should be attached to the father's conduct in the past and in particular as he has withheld the child from the mother for lengthy periods of time on three occasions including contrary to orders. I also consider it significant that the father appears to have been able to convince the police about the appropriateness of his actions when the mother has sought police assistance. In my view, there is real risk that the father will not comply with an order for the return of the child and for this reason I consider it is proper that a Recovery Order issue in the event that the father defaults. A Recovery Order will remain operative for 12 months and is likely to also assist the mother in the future if there are any other occasions on which the father withholds the child contrary to court orders. CONCLUSION Having regard to each of the best interests considerations as discussed and attaching particular weight to the need to protect the child from family violence, identified inadequacies in the father's capacity to meet the emotional and psychological needs of the child and the other matters referred to, I consider it proper to make all of the orders as proposed by the mother as I am of the view that those orders are in the best interests of the child. For the foregoing reasons, I make the orders set out at the forefront of these Reasons.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.