FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mishari & Hanu [2023] FedCFamC1F 457
File number: MLC 575 of 2021 Judgment of: WILLIAMS J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – PARENTING – Highly conflictual parenting dispute – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Agreed children live with the mother – Dispute about the time the children spend with the father – Allegations of sexual abuse but no allegation of unacceptable risk – Where the parties have differing observances of Judaism and religious practices –Where there is alleged inconsistency in care between households – Consideration of the transition between households and its impact on the children – Orders that the parents have equal shared parental responsibility of the children and children spend significant and substantial time with the father Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 60CG, 61DA, 61DA(2), 65DAA, 65DAA(3), 65DAA(5).
Cases cited: Banks & Banks [2015] FamCAFC 36
G & C [2006] FamCA 994
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Naparus & Frankham (No. 3) [2021] FamCAFC 150
Division: Division 1 First Instance Number of paragraphs: 350 Date of hearing: 17–21 and 24 April 2023 Place: Melbourne Counsel for the Applicant: Mr Stanley Solicitor for the Applicant: Southern Family Law Counsel for the Respondent: Mr Puckey KC Solicitor for the Respondent: Taussig Cherrie Fildes Counsel for the Independent Children's Lawyer: Ms Colla Solicitor for the Independent Children's Lawyer: CE Family Law Pty Ltd ORDERS
MLC 575 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MISHARI
Applicant
AND: MS HANU
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.Both parents have equal parental responsibility for the children of the marriage namely X born … 2019 and Y born … 2021(“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father as follows:
(a)Immediately upon the Court making these orders:
(i)On the first weekend of each calendar month from 5.00pm Saturday until 5.00pm Sunday;
(ii)On the second and third weekend of each month from 9.30am to 5.00pm Saturday;
(iii)On the fourth weekend of each month from 9.30am to 5.00pm Sunday.
(b)Commencing 1 October 2023:
(i)Each alternate weekend from 5.00pm Saturday to 5.00pm Sunday;
(ii)Each alternate Thursday 9.30am until 5.00pm.
(c)Commencing 1 April 2024:
(i)Each alternate weekend from 9.30am Saturday to 5.00pm Sunday;
(ii)Each alternate Thursday from 9.30am to 5.00pm.
(d)Commencing 1 November 2024:
(i)Each alternate week from 5.00pm Friday to 5.00pm Sunday;
(ii)Each alternate Thursday from 9.30am to 5.00 pm.
(e)Upon X commencing…
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CaseChat Overview and Summary
The court emphasised the importance of the children having a meaningful relationship with both parents. The court considered the evidence about the children's relationship with each parent and the benefit to the children of maintaining that relationship. The court also considered the evidence about the parents' differing observances of Judaism and religious practices, and the impact of those differences on the children. The court ordered that the children would spend time with each parent on Jewish holidays and other special occasions, in a way that reflected the parents' differing religious practices. The court also made detailed orders about communication between the parents, transitions between households, and other practical arrangements for the children's care. The court considered the evidence about the impact of the parents' conflict on the children, and the need to protect the children from that conflict. The court made orders to restrain the parents from discussing the proceedings with or in the presence of the children, and from speaking negatively about each other or their extended families to or in the presence of the children. The court also made orders to facilitate communication between the parents and the children, and to support the children's relationship with each parent.
Orders
Orders of the court
MLC 575 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR MISHARI
Applicant
AND:
MS HANU
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1. All previous parenting orders be and are hereby discharged.
2. Both parents have equal parental responsibility for the children of the marriage namely X born … 2019 and Y born … 2021(“the children”).
3. The children live with the mother.
4. The children spend time and communicate with the father as follows:
(a) Immediately upon the Court making these orders:
(i) On the first weekend of each calendar month from 5.00pm Saturday until 5.00pm Sunday;
(ii) On the second and third weekend of each month from 9.30am to 5.00pm Saturday;
(iii) On the fourth weekend of each month from 9.30am to 5.00pm Sunday.
(b) Commencing 1 October 2023:
(i) Each alternate weekend from 5.00pm Saturday to 5.00pm Sunday;
(ii) Each alternate Thursday 9.30am until 5.00pm.
(c) Commencing 1 April 2024:
(i) Each alternate weekend from 9.30am Saturday to 5.00pm Sunday;
(ii) Each alternate Thursday from 9.30am to 5.00pm.
(d) Commencing 1 November 2024:
(i) Each alternate week from 5.00pm Friday to 5.00pm Sunday;
(ii) Each alternate Thursday from 9.30am to 5.00 pm.
(e) Upon X commencing primary school in 2025:
(i) Each alternate week from 5.00pm Friday to 5.00pm Sunday;
(ii) Each alternate Thursday from 3.30pm until 9:00am or the commencement of school Friday.
(f) Commencing 1 July 2025:
(i) Each alternate weekend from 3.30pm or the conclusion of school Friday to 9.00am or the commencement of school Monday;
(ii) Each alternate Thursday from 3.30pm until 9.00am or the commencement of school Friday.
(g) Upon Y commencing primary school in 2026:
(i) Each alternate weekend from 3.30pm or the conclusion of school Friday to 9.00am or the commencement of school Monday;
(ii) Each alternate Wednesday from 3.30pm until 9.00am or the commencement of school Friday.
School holiday periods
(h) Until the commencement of holiday time in term 1 2024 school holidays, the children’s time with the father shall continue in accordance with the term arrangements referred to in orders 3-4 hereof.
(i) Upon commencement of holiday time as referred to in subsequent orders, the children’s usual term time with the father shall be suspended and recommence at the conclusion of the holidays in the week immediately after the conclusion of the holidays in the same cycle as prior to the school holidays.
(j) For school term time in 2024:
(i) In week 1 for two (2) consecutive nights, as agreed and in default of agreement, from 5.00pm Monday to 5.00pm Wednesday;
(ii) In week 2 for two (2) consecutive nights, as agreed and in default of agreement from 5.00 pm Friday to 5.00pm Sunday.
(k) For the 2024/2025 long summer holidays:
(i) In week 1, 3 and 5 for two (2) consecutive nights, as agreed and in default of agreement, from 9.00am Monday to 5.00pm Wednesday;
(ii) In week 2, 4, 6 for two consecutive nights, as agreed and in default of agreement, from 9.00am Friday to 5.00pm Sunday.
(l) For school term time in 2025:
(i) In week 1 for three (3) consecutive nights, as agreed and in default of agreement, from 9.00am Monday until 5.00 pm Thursday;
(ii) In week 2 for three consecutive nights, as agreed and in default of agreement, from 9.00am Thursday until 5.00 pm Sunday.
(m) For the 2025/2026 long summer holidays:
(i) In week 1, 3 and 5 for three (3) consecutive nights, as agreed and in default of agreement, from 9.00am Monday to 5.00pm Wednesday;
(ii) In week 2, 4, 6 for four (4) consecutive nights, as agreed and in default of agreement, from 9.00am Wednesday to 5.00pm Sunday.
(n) Commencing term 1 2026 and each school term thereafter for one half of the school term holidays as may be agreed between the parties in writing, and failing agreement alternating as to the first and second halves with the father to spend time in the first half of each term holidays in 2026.
(o) For one half of the long summer holidays in 2026/2027 on a week on/week off basis as may be agreed between the parties in writing and failing agreement the father spend time in weeks 1, 3 and 5.
(p) Commencing in the long summer holidays in the year 2028/2029 for one half of the long summer holidays as may be agreed between the parties in writing and failing agreement alternating as the first and second halves with the Father to commence with the first half.
Special occasions
5. The children spend time with each parent on special occasions as follows:
(a) On the following Jewish holidays:
(i) In the year 2023 and each alternate year thereafter:
A. For Purim - with the father from 4.00pm on the day prior to Purim to 4.00pm on the day;
B. For Pesach (Passover) - with the mother from 4.00pm on the day prior to Passover to 4.00pm on the first day of Passover and with the father from 4.00pm on the first day of Passover to 4.00pm on the second day of Passover;
C. For Pesach (Passover) - with the mother from 4.00pm on the sixth day of Passover to 4.00pm on the seventh day of Passover and with the father from 4:00pm on the seventh day of Passover to 4:00pm on the eight day of Passover;
D. For Rosh Hashanah - with the mother from 4.00pm on the day prior to Rosh Hashanah to 4.00pm on the first day of Rosh Hashanah and with the father from 4.00pm on the first day of Rosh Hashanah to 4.00pm on the second day of Rosh Hashanah;
E. For Shavuot - with the mother from 4.00pm on the day prior to Shavuot to 4.00pm on the first day of Shavuot and with the Father from 4.00pm on the first day of Shavuot to 4.00pm on the second day of Shavuot;
F. For Yom Kipper - with the father from 1.00pm of the Eve to 9.00am on the day following Yom Kipper;
G. For Sukkot - with the mother from 4.00pm on the day prior to Sukkot to 4.00pm on the first day of Sukkot and with the father from 4.00pm on the first day of Sukkot to 4.00pm on the second day of Sukkot.
H. For Shemini Atzeret/Simchat Torah - with the mother from 4.00pm on the day prior to Shemini Atzeret/Simchat Torah to 4.00pm on the first day of Shemini Atzeret/Simchat Torah and with the Father from 4.00pm on the first day of Shemini Atzeret/Simchat Torah to 4.00pm of the second day of Shemini Atzeret/Simchat Torah.
(ii) In the year 2024 and each alternate year thereafter
A. For Purim - with the mother from 4.00pm on the day prior to Purim to 4.00pm on the day;
B. For Pesach (Passover) - with the father from 4.00pm on the day prior to Passover to 4.00pm on the first day of Passover and with the mother from 4.00pm on the first day of Passover to 4.00pm on the second day of Passover;
C. For Pesach (Passover) - with the father from 4.00pm on the sixth day of Passover to 4.00pm on the seventh day of Passover and with the mother from 4.00pm on the seventh day of Passover to 4.00pm on the eighth day of Passover;
D. For Rosh Hashanah - with the father from 4.00pm on the day prior to Rosh Hashanah to 4.00pm on the first day of Rosh Hashanah and with the mother from 4.00pm on the first day of Rosh Hashanah to 4.00pm on the second day of Rosh Hashanah;
E. For Shavuot - with the father from 4.00pm on the day prior to Shavuot to 4.00pm on the first day of Shavuot and with the mother from 4.00pm on the first day of Shavuot to 4.00pm on the second day of Shavuot;
F. For Yom Kipper - with the mother from 1.00pm of the Eve to 9.00am on the day following Yom Kipper;
G. For Sukkot - with the father from 4.00pm on the day prior to Sukkot to 4.00pm on the first day of Sukkot and with the mother from 4.00pm on the first day of Sukkot to 4.00pm on the second day of Sukkot;
H. For Shemini Atzeret/Simchat Torah - with the father from 4.00pm on the day prior to Shemini Atzeret/Simchat Torah to 4.00pm on the first day of Shemini Atzeret/Simchat Torah and with the mother from 4.00pm on the first day Shemini Atzeret/Simchat Torah to 4.00pm on the second day of Shemini Atzeret/Simchat Torah.
(b) With the father from 4.00pm Christmas Eve until 4.00pm Christmas Day in each year.
Birthdays
6. In the event that the children’s birthdays do not fall within the father’s usual spend time periods, both children spend time with the father on each of their birthdays as follows:
(a) If such day falls on a weekday, from 3.30pm to 6.00pm;
(b) If such day falls on a weekend day, from 9.00am to 2.00pm.
7. In the event that the father’s birthday does not fall within his usual spend time periods, the children spend time with the father on his birthday as follows:
(a) If such day falls on a weekday, from 3.30pm to 6.00pm;
(b) If such day falls on a weekend day, from 9.00am to 2.00pm;
(c) With the same time to be afforded to the mother for her birthday.
8. The children spend time with the father on Father’s Day 2023 from 9.30am until 4.00pm and from 2024 and each year thereafter, from 3.00pm Father’s Day Eve to 5.00pm Father’s Day, with the same time to be afforded to the mother for Mother’s Day
Communication
9. The father is at liberty to contact the children via FaceTime on a Wednesday and Sunday (unless such day is a spend time day for the Father) between 5.00pm and 5.30pm with the mother to facilitate such calls and the father to initiate such calls to a device or number nominated by the mother.
10. Upon the children commencing two consecutive nights of overnight time, the mother is at liberty to contact the children on one occasion via FaceTime between 5.00pm and 5.30pm with the father to facilitate such calls and the mother to initiate such calls to a device or number nominated by the father.
11. In the event either parent travels overseas with the children, the non-travelling parent is at liberty to contact the children every third day via FaceTime with the travelling parent to facilitate such calls and the non-travelling parent to initiate such calls to a device or number nominated by the travelling parent.
12. Each parent facilitate the children electronically communicating with the other parent at all times as may be reasonably requested by the children or otherwise as agreed between the parents.
13. Communication between the parents about the implementation and operation of these orders shall be in writing (via SMS, email or OurFamilyWizard) save for in the case of an emergency and in those circumstances only, each parent is permitted to telephone the other.
14. Each parent must keep the other advised as to any changes to their residential address, landline, mobile telephone numbers, and email addresses, and notify the other of any change to such details within twenty four (24) hours of such change.
Changeover
15. All changeovers which occur on a crèche/childcare, kindergarten or school attendance day are to occur at the child’s education facility.
16. All other changeovers occur with the father to collect the children from the mother’s home if time commences during Shabbat and if time does not commence during Shabbat, the mother or her nominee deliver the children to the father’s home at the commencement of time, and the father deliver the children to the mother’s residence at the conclusion of his time, or such other location as may be agreed to the parties in writing.
17. Both parents shall facilitate the children transitioning to the other parent’s home with any comfort items, which are to be returned with the children at changeover.
Children’s health and wellbeing
18. X continue to attend upon Ms B, psychologist, or such other psychologist as may be nominated and recommended by her for therapeutic counselling and psychological support.
19. That for the purpose of attending upon Ms B or her nominee:-
(a) The parents must each facilitate X’s attendance as recommended by Ms B.
(b) The parents must personally attend sessions as recommended by Ms B.
(c) The parents must participate in sessions with X or the other parent as recommended by Ms B.
(d) Follow all reasonable directions of Ms B in promoting a relationship between each parent and X and otherwise improving their co-parenting.
(e) Each parent is to pay the costs of any individual session or their sessions with the child and any joint sessions or sessions with the child alone are to be paid by the parents equally.
(f) That both parents are to ensure X’s ongoing attendance at C Therapy and are mutually restrained from taking X to any other mental health practitioner unless recommended by Ms B or by written agreement between the parents.
20. Both parents are permitted to provide to Ms B or such other therapist nominated by her, a sealed copy of these orders, a copy of these reasons, copies of Dr D’s family reports and Ms E’s sleep report.
21. Both parents keep the other advised about:
(a) the name and address of any of the children’s health professionals;
(b) any medication prescribed for the children, and required by the children during the other parents time period, with any such mediation to be provided by way of exchange at changeover;
(c) except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any medical appointments for the children;
22. Both parents authorise and direct any and all health and allied health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time.
23. The parents advise each as soon as practicable of:
(a) any significant injury or illness affecting the children or either of them;
(b) any required referral upon a medical specialist including details of such referral;
(c) any illness requiring the provision of any medication prescribed by a Medical Practitioner;
(d) any hospital attendance or proposed hospital attendance by the children or either of them;
(e) When the children are in their respective care , both parents administer all medicines as prescribed by the children’s treating doctors;
Educational and extracurricular activities
24. The parents do all things necessary to authorise and keep each other authorised to receive information at their respective expense copies of childcare/educational facility/school reports, newsletters, school photographs and all such other information that would normally be received by a parent from any childcare, kindergarten, school or before/after school provider.
25. Both parents and their respective extended families are be permitted to attend the child’s crèche/childcare, kindergarten, school or extra-curricular activity providers for sports days, concerts, parent/teacher interviews, first day of term and otherwise usual activities affiliated with the crèche, childcare, kindergarten, school or extra-curricular activity providers to which parents/family are invited or welcomed to attend.
26. Both parents will keep the other advised as to any school absence days for the children including the reason for such absence.
27. Both parents are permitted to each have access to all communication portals operated by any child care, kindergarten or school, subject to any formal school policy.
Travel
28. Both parties are at liberty to travel interstate with the children provided that such travel is undertaken during their respective live with/spend times periods pursuant to these orders and the other parent is advised twenty eight (28) days prior to departure of travel dates, location and contact details for the children for the duration of such travel.
29. That upon the commencement of holiday time when the children commence week about with each parent during the long summer holidays, both parties are at liberty to travel overseas with the children provided that:-
(a) such travel is undertaken during their respective time with periods or such other time with the express written agreement of the other parent;
(b) the travelling parent provide to the other parent at least twenty eight (28) days prior to departure a copy of a return airline flight, itinerary, location and contact details for the children for the duration of the travel period.
(c) such travel not to be travelling to, or transitioning through, any country listed on the Australian Government’s Smart Traveller website with “Do Not Travel” overall advice level for that country.
Passports
30. Both parents do all acts and things within twenty eight (28) days of any request to the other, to obtain an Australian passport for each of the children and equally pay one half of any costs associated with obtaining or renewing a passport.
31. The Mother retain the children’s passports, and make the passports available to the Father to enable him to obtain any visa and for the purpose of any overseas travel.
32. The father shall return the children’s passports to the Mother within seven (7) days of the children’s arrival back in Australia.
Therapeutic support
33. The father continue to attend upon Ms F as may be recommended by her to assist him with co-parenting, communication and otherwise any issues which may arise as to the operation or implementation of these orders.
Restraints
34. The mother and father, together with their servants and agents, be and are hereby restrained from enrolling the children or either of them at any child care, educational facility or extracurricular activity, or referring to the children in any documentation at such facility or activity or instructing that the children be called any name other than X or X Hanu and Y or Y Hanu.
35. The mother and father be restrained by injunction from:
(a) discussing these proceedings or the contents of any documents filed in these proceedings with or in the hearing or presence of the children or either of them, or permitting anyone else to do so; and
(b) denigrating, rebuking or speaking negatively about the other parent or each parent’s extended family and friends to or in the hearing or presence of the children or either of them, or permitting anyone else to do so.
36. The father be and is hereby restrained by injunction from consuming illicit substances and/or psychotropic medications (other than those prescribed by a medical professional) during, or within twenty four (24) hours immediately preceding any period the children spend with him pursuant to these orders.
37. That to the extent that any orders are inconsistent with any intervention order, these orders will prevail pursuant to s 68P of the Family Law Act 1975 (Cth).
38. The Independent Children’s Lawyer is hereby discharged.
NOTATIONS
A. Pursuant to s 65DA(2) and s 62B, 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 the 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.Primary Considerations I will firstly address the primary considerations.The benefit to the child of having a meaningful relationship with both of the child’s parents In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:…The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”. In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”. At [117] of McCall & Clark, the Full Court said:Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic]. The Full Court said there were differing possible approaches to s 60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant. At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:…(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);…(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach. Because of the very young age of the children and the children’s lack of experience living in an intact family household, I prefer the prospective approach in this matter. X was born in 2019, just under a year after the parties’ commencement of cohabitation. In or around November/December 2019, when X was a few months old, the father “withdrew” from the marriage and begun intermittently residing in his Suburb G property. In December 2019 the father travelled overseas for work and did not return until mid-January 2020 at which time he continued to reside in his Suburb G property. The family did not live together after X was approximately two months old.