Mousa & Kamil (No. 4)

[2020] FamCA 788

FAMILY COURT OF AUSTRALIA

Mousa & Kamil (No. 4) [2020] FamCA 788  

File number(s):	CAC 525 of 2017
Judgment of:	GILL J
Date of judgment:	17 September 2020
Catchwords:	FAMILY LAW – Children – Parenting – with whom the children live – parental responsibility – where the Mother has not participated in the proceedings for two years – where the Mother seeks adjournment – best interests of the children – where the elder child has been living with the Applicant Father – order for sole parental responsibility – order for child to live with Applicant Father – where the younger child has been living with the Second Respondent Father – where Mother seeks order for sole parental responsibility vested in the Father be subject to a consultation provision – order for sole parental responsibility – order for child to live with Second Respondent Father
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	26
Date of hearing:	17 September 2020
Place:	Canberra
Solicitor for the Applicant:	Phelps Reid Foster Johnson
Solicitor for the First Respondent:	Dobinson Davey Clifford Simpson
Solicitor for the Second Respondent:	Self Represented
Solicitor for the Independent Children's Lawyer:	Jeanine Lloyd & Associates

ORDERS

CAC 525 of 2017

BETWEEN:

MR MOUSA

Applicant

AND:

MR YAMAN

First Respondent

MS KAMIL

Second Respondent

JEANINE LLOYD & ASSOCIATES

Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	17 SEPTEMBER 2020

THE COURT ORDERS THAT:

X

1.That all previous orders be discharged.

2.That the Second Respondent Father, Mr Yaman ("X's father") have sole parental responsibility for the child X, born … 2015.

3.Insofar as it is reasonably practicable to do so, prior to exercising sole parental responsibility X's father shall communicate with the First Respondent Mother ("the Mother") about the upcoming decision and his preferences, and shall give the Mother's opinion due consideration and will answer any questions raised by the Mother.

4.That X live with her Father.

5.That X spend time with her Mother on such occasions and conditions as agreed between X's father and the Mother.

6.That during any period that X is living with the Second Respondent Father, the Second Respondent Father will facilitate X having FaceTime contact with the First Respondent Mother, Ms Kamil, at least once a week.

7.That during any period that X is living with the Second Respondent Father, the Second Respondent Father will facilitate X having FaceTime contact with her half-sister Y, born … 2007, once every two weeks.

Y

8.That all previous Orders be discharged.

9.The Applicant Father Mr Mousa, born … 1985, have sole parental responsibility for the child, Y, born … 2007.

10.That the child live with the Father.

11.The child spend time with the Mother as agreed between the parties.

12.Orders 11 and 12 of the Orders made by Judge Tonkin on 9 June 2017 in relation to Mr F are discharged. 

13.The Orders in respect of Mr F as sought in the Further Amended Initiating Application of Mr Mousa filed 25 August 2020 are refused.

14.Noting that the Independent Children’s Lawyer intends to meet with Y and to explain the outcome of these proceedings, the Independent Children’s Lawyer is discharged 28 days after the making of 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J

X

1. These proceedings involve X, who is currently five years old.  X is the child of Mr Yaman and of Ms Kamil.  For a period of approximately two years now, X has been living with Mr Yaman in Country B.  Prior to that, she lived primarily with Mr Mousa for a period of time. 

2. The move of X to Country B was necessitated by a then incapacity on the part of either Mr Mousa or Ms Kamil to continue the care for X.  The move to Country B was a move then supported by the Independent Children's Lawyer (the “ICL”).  That move to Country B has resulted in X having a stability in living conditions that she had not previously enjoyed.  Mr Yaman has, at various points, provided information to corroborate the particular circumstances that X is living under.  Those circumstances involve living with him, his partner and half or step-siblings.  He has deposed to the benefits that X obtains from those relationships and has deposed to the particular circumstances that are now seeing X attend school in Country B.  It has also been deposed that despite the difficulties which have been in place in relation to Ms Kamil maintaining a relationship with X that Ms Kamil and Mr Yaman have been able to cooperate for the intervening period to ensure that X has had a relationship despite the fact that she is living in Country B and the Mother still lives in Australia. 

3. The circumstances of X’s living in Country B are demonstrative that Mr Yaman has sufficient capacity as a parent to appropriately care for her emotionally and physically, that she is not the subject of risk of harm while living with Mr Yaman and that Mr Yaman is able to foster meaningful relationships between X and her Mother, as well as X and himself.  X in Country B is surrounded by appropriate care and by people who care for her. 

4. The Mother has conceded that although she thinks it would be best for X to live with her, she is not currently in a position for that to occur.  Under those circumstances, she has consented to the suite of orders proposed by Mr Yaman in his Amended Response to an Initiating Application filed 1 September 2020.

5. The ICL asserts that those orders are in X's best interests and, in light of the above matters, I agree.  Accordingly, I make orders in accordance with Orders 1-7 of the Final Orders sought by Mr Yaman in his Amended Response to an Initiating Application filed 1 September 2020. 

   Adjournment application regarding Y

6. In the proceedings of Mousa & Kamil, by Orders made in mid-August the proceedings were listed for potential final hearing today.  The Orders provided that, should the Mother fail to file a Response or a Notice of Address for Service, she was placed on notice that the proceedings may continue on an undefended basis.  The Mother did not undertake either of those steps but has appeared today via Microsoft Teams.  The Mother is represented by Ms H, who has appeared on a duty basis from the Legal Aid Office. 

7. Despite not having participated in the proceedings for approximately two years, the Mother now seeks an adjournment of today's proceedings in order to pursue a claim that an order for sole parental responsibility vested in the Father should be subject to a consultation provision, requiring him to consult with her and also to seek undefined orders in respect of the time that she might spend with Y.  Those circumstances, being the lack of engagement for a period of almost two years, speak against the adjournment application.  What speaks in favour of the adjournment application is the importance of the matters, including the potential importance of Y retaining a relationship with her Mother and the Mother being able to pursue that by the presentation material to the Court. 

8. However, there is a longer history in the matter which incorporates the Mother's repeated failure to engage in the proceedings prior to her more recent engagement in 2018.  That long-standing lack of engagement in the proceedings, including facing the spectre on multiple occasions of an undefended hearing and coming to the Court on the brink of such undefended hearings taking place should not be replicated again on this occasion by the seeking of a further adjournment.  It is difficult to have confidence that the Mother will produce cogent material if an adjournment is granted.  Under those circumstances, noting the benefits of finalising the proceedings for Y, the application for an adjournment is refused.

   Y

9. The Father seeks Orders firstly that all previous orders be discharged, that he have sole parental responsibility for Y, born in 2007, that Y live with him and that Y spend time with the Mother as agreed between the parties. 

10. The Mother, although she says it would be better for Y to live with her, agrees that Orders should be made for Y to live with the Father.  She says that she is not currently in a position to pursue anything else, which is perhaps a reflection of the observations made by Ms D in the Family Report 2018 where Ms D noted the Mother struggles with mental health/substance abuse and violence.  Those matters do not appear to have been addressed in the intervening period. 

11. The Mother also accepts that the Father should have sole parental responsibility, but only on the proviso that that sole parental responsibility is to be exercised by him following consultation with her about long-term issues or important decisions being made for Y.  She says that she wishes that qualification because she wishes to be involved and engaged in those significant decisions for Y.  The Mother also seeks, but it was not specified what the content might be, orders to be made in relation to her time with Y again, because she says that she wishes to be engaged in her life. 

12. The Mother's concession as to who Y will live with is well-placed.  The material filed in the matter shows while Y lives with the Father and has very little face-to-face contact with the Mother (the Father living in Canberra, the Mother living in Brisbane), Y is living in a household of caring relationships with the Father, his partner and other children. 

13. The Father’s affidavit deposes to parenting that is tailored to Y's particular needs, noting that Y is a person who does have special needs.  He has obtained the appropriate medical intervention for those special needs and has demonstrated parenting her in a manner which takes into account those characteristics and is sensitive towards them.  He describes an affectionate set of relationships and appropriate activities that Y is involved in. 

14. Further, he deposes to appropriate schooling arrangements for Y that again, are sympathetic to her special needs, endeavouring to assist her to blossom as much as possible in an educational sense.  Those matters together point to benefits that Y has in terms of meaningful relationship with her Father, the benefits she derives from those relationships that surround her and the parenting capacity on the part of the Father and those who support him in providing for Y. 

15. Against that, there are limited benefits of meaningful relationship demonstrated in respect of the Mother.  The Mother's concession is appropriately made and it is appropriate that Y should live with the Father. 

16. Similarly, as Y lives with the Father, has only very limited time with the Mother and has barely spent face-to-face time with her in the last few years, it is appropriate that the Father exercise sole parental responsibility as again, it is conceded to some degree by the Mother. 

17. Although the Mother seeks that that parental responsibility should be qualified by an obligation to consult, it cannot be seen that the obligation to consult would be in Y's best interests.  Frequently, such an order may be in a child's best interests as the child derives benefit from having at least some input from each parent into the major long-term decisions to be made.

18. Here, however, the circumstances do not point in that direction.  It may be observed that interactions between the Mother and the Father have proven to be highly abusive on the Mother's part.  Those interactions as described in the Father's affidavit material speak to direct abuse on the part of the Mother towards the Father blaming him for Y's medical needs and otherwise engaging in abuse of him and also abuse of his partner.

19. That conduct of abusive communications with the Father and also with his partner speaks against the productivity of requiring the Father to consult with the Mother.  The opportunities from consulting are not sufficient at this stage to compel the parties to engage in such a process.  At this stage, compulsion to engage in such a process would not be productive of better decision-making.  It would be productive of a high degree of stress on the part of those who are looking after Y as well as on the Mother.

20. No order will be made for consultation as a necessary requirement to the exercise of sole parental responsibility in relation to the major long-term decisions. 

21. The third aspect relates to the time that Y is to spend with the Mother.  As styled by the Father, it is as to be agreed between the parties. His evidence deposes to the fact that he has maintained a relationship between Y and her Mother, despite the gross difficulties that emerge between the parties themselves.  Y has regular telephone time or electronic communication time with the Mother, which is instigated either by Y on which occasions the Father facilitates such, or is alternately instigated by the Mother and again, where it is practically possible to engage in that, the Father facilitates such.  It may be noted that on some of those occasions, the Mother's contact with the Father to contact Y have resulted in abuse of the Father.  Despite that, he gives no indication of ceasing on a course whereby he facilitates Y spending electronic time with the Mother.  He also says that if the Mother were to attend Canberra, he intends to facilitate supervised time which is an approach which may be seen to be consistent with the recommendations made by the Family Consultant in the Family Report.  It may also be observed that, notwithstanding the absence of orders that compel him to do so, he facilitated Y spending time with the Mother in Queensland.

22. At the moment, the best arrangements that can be made are ad hoc arrangements reliant upon the goodwill the Father has demonstrated towards facilitating a relationship between Y and the Mother, albeit via electronic communications. 

23. There is no capacity at present, particularly with the Mother living in Queensland and Y living in Canberra, to make alternate orders and no specific alternate orders are sought by the Mother that are able to be considered.  On balance, it is in Y's best interest for the orders to be made as sought by the Father. 

24. Those orders provide for protection for Y from exposure to, for example, neglect, abuse or family violence.  In particular family violence is the issue that has been articulated between the parties.  They provide scope for Y to have relationship with the Mother and to derive benefits from that relationship.  It supports a meaningful relationship between the Father and Y.  At present, I am unaware of what Y's views might be.  The orders are also reflective of the parental capacity which has been demonstrated by the Father which will assist Y in her care, welfare and development and is also reflective of the important relationships that surround Y.

25. It may be observed correctly, as indicated by the ICL, that circumstances change.  Circumstances may well emerge in which Ms Kamil is able to reach a place where it is appropriate for her to make a further application to the Court for the amendment of the orders.  It may well be the case that in the future that she is able to do that and under the circumstances of the current orders, one would suspect that the ICL is quite right to observe that there would not be a major threshold for her to cross in being able to do so. 

26. Should the Mother be able to demonstrate circumstances which support greater interaction in relation to the major long-term decisions in respect of Y or be able to demonstrate circumstances reflective of other arrangements being able to be put in place for her to spend time with Y, then those are matters that can be the subject of a further application and as observed, are unlikely to require a major change in circumstances to attract the attention of the Court in determining whether those new proposed arrangements would be in Y's best interests. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       22 September 2020