Moradi & Rahimi

Case [2023] FedCFamC1F 528

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Moradi & Rahimi [2023] FedCFamC1F 528  

File number(s): SYC 9112 of 2020
Judgment of: BERMAN J
Date of judgment: 30 June 2023
Catchwords:

FAMILY LAW – CHILDREN – With whom the children live with – Where each party seeks that the children live with them – Where the children have lived in the primary care of the mother and father and not spent significant blocks of time with either parent – Where each party alleges significant risk of the other – Where the orders sought are inconsistent with a contention that there is risk in either party’s household – Where the Court finds the father has engaged in family violence – Where the father is unlikely to support the children’s relationship with the mother – Where the mother has maintained the children appropriately – Where the Court orders for the children to live with the mother.

FAMILY LAW – CHILDREN – With whom the children spend time with – Where the parties agree that the children should spend significant time with the other parent – Where there is a deep mistrust between the parties and their relationship is hostile – Where the parties can communicate but cannot come into physical contact with each other – Where the most significant risk to the children arises from the litigation – Consideration of what orders may limit the need for either party to resort to future litigation – Where the Court finds that time spending with the father should be in one block period – Orders.

Legislation: Family Law Act 1975 (Cth) Div 12A, ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(2A), 61DA, 61DA(2), 69ZN, 69ZT, 69ZT(3).
Cases cited:

AMS v AIF (1999) 199 CLR 160

Champness & Hanson (2009) FLC 93-407

Mazorski & Albright [2007] Fam LR 518

Rahimi & Moradi [2023] FedCFamC1F 151

Sigley v Evor (2011) 44 Fam LR 439

U v U (2002) 211 CLR 238
Division: Division 1 First Instance
Number of paragraphs: 173
Date of hearing: 27-28 February and 1-2 March 2023
Place: Sydney
Counsel for the Applicant: Mr Iuliano
Solicitor for the Applicant: Swifte Law
Counsel for the Respondent: Ms Golovina
Solicitor for the Respondent: RMG Law & Associates
Counsel for the Independent Children's Lawyer: Mr Holmes
Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

SYC 9112 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MORADI

Applicant
AND:

MS RAHIMI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BERMAN J

DATE OF ORDER:

30 June 2023

THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.The parties have equal shared parental responsibility for X born 2012 and Y born 2014 (collectively “the children”).

3.The children live with the mother.

4.That the children spend time with the father as follows:

(a)Each alternate weekend from after school on Thursday (or 3.30 pm on a non- school day) until before school on the following Tuesday (or 8.30 am on a non-school day);

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AGLC
Moradi & Rahimi [2023] FedCFamC1F 528
Case
[2023] FedCFamC1F 528
Decision Date

CaseChat Overview and Summary

The case involves a dispute between the father and mother regarding the care and welfare of their children. The father filed an application for divorce, while the mother filed an initiating application seeking a declaration of nullity of their marriage. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the marriage and resolving the parenting dispute. The legal issues before the court included whether the marriage was valid and whether the proposed parenting arrangements were in the children's best interests. The court found that the marriage was valid and considered the evidence presented by both parties. The father alleged that the mother was verbally and physically abusive, and that he was the primary caregiver for the children. The mother disputed these allegations and argued for a more balanced parenting arrangement. The court found that the mother had maintained the children appropriately and that the children had a warm and close relationship with the mother's partner, contrary to the father's allegations. The court considered the benefit to the children of having a meaningful relationship with both parents but ultimately concluded that the children's interests would be best served by identifying one parent as having primary care. The court determined that the mother was the parent most likely to support the children's relationship with the father. The final orders of the court established the parenting arrangements for the children, granting the mother primary care and specifying the father's visitation rights.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

All parties filed a Case Outline document at the commencement of the proceedings. BACKGROUND The father was born in 1978 and is 45 years of age. The mother was born in 1978 and is 45 years of age. The parties commenced a relationship in or about 2008/2009 and were married in Country Q in 2010. The parties separated on a final basis on 28 April 2018. In proceedings (SYC4013/2021), the father filed an Application for Divorce on 31 May 2021. In response to the father’s Application for Divorce, in proceedings (SYC8679/2021), the mother filed an Initiating Application on 22 November 2021 seeking that the marriage be declared null and void. For the reasons set out in my judgment of Rahimi & Moradi [2023] FedCFamC1F 151, I found that the parties were lawfully married and the grounds for the declaration of nullity do not exist. The father is a full-time student studying to become an educator. He completed his studies in 2022 and anticipates that he will commence full-time employment as an educator shortly after the conclusion of the proceedings. The mother is employed on a full-time basis in customer service. The father has one adult daughter from a previous relationship who he has limited contact with. The father has not currently re-partnered. The mother has re-partnered with Mr C. They underwent a marriage ceremony in 2018 however, that marriage is no longer valid in circumstances where I have found that the mother’s marriage to the father was valid and is not null and void. History of the care arrangements and the proceedings The children have been subject to multiple changes in their care arrangements and there have been significant periods where they have not spent time with either parent. The changes in the care arrangements appear to be as a result of the parties’ fundamental inability to communicate and support a relationship between the children and the other parent when interpersonal issues between the parties arise. It is apparent that there is some difficulty in their ability to co-parent. At separation, the children remained living with the mother in the former matrimonial home and the father departed to Country R. The mother asserts that whilst the father was in Country R, he would watch her and the children on the cameras inside the home and then telephone the mother to ask what she was doing. The mother deposes at paragraph 46 to 47 of her trial affidavit, that upon the father’s return from Country R, he returned to the former matrimonial home. The mother did not want to live separated under the same roof so she left and found alternate accommodation. She asserts that the father did not allow her to take the children with her. The mother returned to the former matrimonial home to pick up the children the following day only to discover that the father had changed the locks. The mother telephoned the police who undertook a welfare check on the children and determined that there was no risk to the children and given there were no parenting orders, the children remained at the former matrimonial home in the father’s primary care.

Evidence

Evidence Before The Court

I consider that the principles of s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence and in particular if it is contentious.THE EVIDENCEThe father The father’s evidence is that from early 2018, the mother consumed alcohol to excess and became verbally and physically abusive towards him. He considers that he was the primary carer of the children which was made necessary by the frequency of the mother going out at night. As such, the father and the children developed a close relationship. Between April and December 2018, the children lived with the mother but spent regular time with the father. The father considered that it was a reasonable pattern and that the level of communication between the parties was such that a workable arrangement was in place. In December 2018, the mother delivered the children into the care of the father at a time when Y was at preschool and X was attending kindergarten. Whilst there is contention as to the extent of time that the mother spent with the children, it is broadly agreed that they remained in the father’s primary care until they returned to the mother’s care in July 2019 because the father was unemployed and did not receive any income. The children then returned to the father’s care in July 2019 until 29 July 2021 when the father was ordered to return the children to the mother’s care. The father did not see the children from September 2021 to October 2022. The father denies that he consumed any illicit drugs and does not have any concern that the mother is a drug user. To underpin the father’s contention, he has taken two hair follicle tests with a negative result. The tension between the parties, consequent upon the contested litigation, culminated in the father hitting his head with an object in early 2018 which then resulted in a provisional ADVO been taken out against the father with the mother listed as the protected party. The father conceded that whilst at some stage he either ceased, or certainly lessened, his alcohol intake, he states that both parties at times drank alcohol to excess. The father denies that he ever smoked marijuana or that he was violent or aggressive. The father did commence using medication prescribed by his medical advisers but he maintains that it was not to excess. The father was ordered to undertake a hair follicle test within three weeks of the Orders of 17 March 2021. Understanding that the purpose of the Order was to ascertain a history of drug use by the father, he shaved his head and then undertook the test seven weeks out of time. Notwithstanding the efforts of the father, he still tested positive for codeine based pain medication. The mother’s concern arises from her mistrust of the father’s assertion that he no longer uses the prescription medication. The father did concede that he forwarded email communication to a Judicial Registrar asserting that the mother’s partner, Mr C, was a paedophile with an indication that he would cease the mother’s time with the children if there was any opportunity for the children to come into contact with Mr C.

Decision

Reasons for decision

I do not consider that there is sufficient evidence regarding the views expressed by the children for their wishes to be determinative but rather, it corroborates the position of the parties that whatever the outcome, there should at least be significant and substantial time spent with the non-lives with parent. The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision making and spend time and communicate with the children Since 2021, the children have lived in the primary care of the mother. I do not draw any adverse inference in respect of the father’s conduct with having been the basis for no time spending but rather following the mother’s recovery order, the father’s time was ceased. Each of the parties appear to focus on the importance of the children’s education. The father alleges that he would be best placed to pursue and support the children in their academic pursuits and he remains concerned at the period of time that the children were absent from school. The mother does not accept the father’s proposition and considers that she has managed the children’s care appropriately. I note the father’s allegation that he considered the children to be malnourished. No coherent evidence was put to the Court in relation to that particular allegation and I give it no weight. The family consultant was broadly impressed with the mother’s ability to cater for the needs of the children. I accept that both parties are interested, engaged and want to remain involved in the children’s care, welfare and development.The extent to which each of the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the children. As considered, the children have remained in the primary care of the mother since 2021. Even against the background of the father’s allegations that the mother has been less than diligent in her care of the children regarding health and education, the evidence supports a finding that the mother has maintained the children appropriately. The level of financial support from the father is minimal and in that regard, the financial needs of the children have been met by the mother’s household and not with significant assistance from the father. The likely effect of any change in the children’s circumstances including separation from either parent or other children The parameters of the dispute would see the children’s time with the father increase to five nights a fortnight on the mother’s case and seven nights a fortnight on the father’s case. Whilst the dispute appears to be of narrow compass, the family consultant considered that the children’s interests will be best served by identifying one parent as having primary care. The mother was considered to be the parent who was most likely to support the children not just in terms of their day to day needs but also in terms of their relationship with the father. The family consultant was not certain that the father would be able to support and promote the children’s relationship with the mother if he gained equal time.

Ratio Decidendi

Legal Principle Established

It is an important consideration that the family consultant observed the children to have a warm and close relationship with Mr C contrary to the allegation that he had acted in a sexually inappropriate manner towards Y.PARENTING CONSIDERATIONS Meaningful relationship The consideration of what is intended by a "meaningful relationship" or "meaningful involvement" is one which is "important, significant and valuable to the child" (see Mazorski & Albright [2007] Fam LR 518). The Court is entitled to assume that there is a benefit to all children in having a meaningful relationship with both of the parents, but that must always be considered from the aspect of the advantage to the child of having a meaningful relationship with one or other or both of the parties, rather than what outcome will promote a relationship with a parent. As has been clearly mandated in the decisions of AMS v AIF (1999) 199 CLR 160 at [95] per Gaudron J, at [196] per Kirby J and in U v U (2002) 211 CLR 238 at [37] per Gaudron J, each of the separate proposals of the parties must be first identified and then be the subject of separate evaluation. In Sigley v Evor (2011) 44 Fam LR 439 in the context of a relocation case, the Full Court undertook a review of the authorities with a view to defining "meaningful relationship" and in doing so at [136] quoted the following from the decision of Champness & Hanson (2009) FLC 93-407 ("Champness") at 83,502:103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a "meaningful relationship" with both parents. This is an incorrect assumption. The Court's obligation is to make the orders most likely to promote the child's best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider "the benefit to the child" of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all the other relevant factors. …(Emphasis in original) At [136], the Full Court then went on to further cite the following observations of the Full Court in Champness (supra) at 83,513:-191.The first and very important observation we would make about this complaint is that the expression "meaningful relationship" is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a "meaningful relationship". In Mazorski & Albright [2007] Fam LR 518, Brown J commented on the definition of “meaningful” and said:-26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. …