Mudin & Bashar

Case [2022] FedCFamC1F 234

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mudin & Bashar [2022] FedCFamC1F 234

File number(s): SYC 4881 of 2013
Judgment of: MCCLELLAND DCJ
Date of judgment: 11 April 2022
Catchwords: FAMILY LAW – PARENTING – Islamic divorce – Where the child has not spent time with the father since 2015 – Where the mother has failed to facilitate the child’s supervised time with the father – Where the father disengaged from the proceedings for almost three years – Both parents engaged in coercive and controlling conduct against each other – Mother has made false allegations of physical violence against the father – Mother has influenced child’s negative view of the father – Change of residence would be traumatic for the child – Supervised time not viable – Order made for mother to have sole parental responsibility – Father to communicate with the child on special occasions – Child placed on airport watch list.  
Legislation:

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60I, 61DA, 65DAA, 65DAC, 121
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 24

Blinko & Blinko [2015] FamCAFC 146

Cotton & Cotton (1983) FLC 91-330

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15

M and M (1998) 166 CLR 69; [1988] HCA 68

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 250

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Picton and Crowley [2017] FamCA 811

R v C [1993] FamCA 62

Sigley v Evor (2011) 44 Fam LR 439

Stott and Holgar [2017] FamCAFC 152
Division: Division 1 First Instance
Number of paragraphs: 282
Date of hearing: 27–29 September 2021, 1 October 2021, 7–8 October 2021, 16 November 2021
Place: Sydney (via videolink)
Counsel for the Applicant: Mr Strik
Solicitor for the Applicant: Jack Rigg Solicitors
Counsel for the Respondent: Ms Kaiti
Solicitor for the Respondent: A & J Montgomery Legal
Counsel for the Independent Children's Lawyer: Ms Messner
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 4881 of 2013

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

MR MUDIN

Applicant
AND:

MS BASHAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

11 APRIL 2022

THE COURT ORDERS THAT:

Parental responsibility

1.The mother have sole parental responsibility for X born in 2012 (“the child”).

Live with

2.The child live with the mother and spend time with the father as follows:

(a)in respect to the period until the child turns 13 years of age, as agreed to between the father and the mother in writing; and

(b)as and from the time that the child turns 13 years of age, in accordance with the wishes of the…

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AGLC
Mudin & Bashar [2022] FedCFamC1F 234
Case
[2022] FedCFamC1F 234
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Mudin & Bashar involved a dispute between the parties over the care and control of their nine-year-old child, X. The primary issues before the court were the allocation of parental responsibility, the living arrangements for the child, and the terms under which the child should spend time with the father. The court was also required to consider the impact of the parents' conduct on the child and the feasibility of supervised contact between the child and the father.

The court found that both parents had engaged in coercive and controlling conduct towards each other, and that the mother had significantly influenced the child's negative perception of the father. The father had also disengaged from the proceedings for almost three years, which contributed to the current situation where the child had not spent time with him since 2015. The court was not satisfied that the mother had facilitated the child spending time with the father as required by previous orders. The court concluded that supervised contact was not viable due to the child's strong negative views towards the father. Consequently, the court decided that the mother should have sole parental responsibility, while the father would be allowed to communicate with the child through cards, letters, and gifts on special occasions. Additionally, the court placed the child on the airport watchlist to prevent removal from Australia without the court's permission.

In conclusion, the court's orders provided for the child to live with the mother, with sole parental responsibility vested in her. The father was permitted to maintain a connection with the child through occasional communication and gifts. The court also issued various restraints to prevent the parents from denigrating each other in front of the child and from physically disciplining the child. The child was placed on the airport watchlist to prevent unauthorised removal from Australia. The Independent Children's Lawyer was directed to meet with the child to explain the court's orders.

Orders

Orders of the court

SYC 4881 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MUDIN

Applicant

AND:

MS BASHAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

11 APRIL 2022

THE COURT ORDERS THAT:

Parental responsibility

1. The mother have sole parental responsibility for X born in 2012 (“the child”).

Live with

2. The child live with the mother and spend time with the father as follows:

(a) in respect to the period until the child turns 13 years of age, as agreed to between the father and the mother in writing; and

(b) as and from the time that the child turns 13 years of age, in accordance with the wishes of the child.

Communication

3. The father may communicate with the child by way of cards, gifts and letters on the child’s birthday and during Eid, with such correspondence to be posted to the child at the child’s place of residence.

4. The mother shall, on receipt of any correspondence or items from the father in accordance with Order (3) above, provide such correspondence or items to the child.

Exchange of information

5. The mother shall forthwith notify the father of the following information:

(a) The address at which the child resides;

(b) The name of the school that the child attends;

(c) The name of the child’s treating general practitioner and any other medical treatment provider; and

(d) The details of any extracurricular activities that the child is involved in.

6. The parents shall otherwise keep one another informed at all times of:

(a) Their current residential address and contact telephone number and advise the other parent of any change in such details within 24 hours of such change occurring;

(b) Any medical problems or illnesses suffered by the child while in their respective care;

(c) Any medication that has been prescribed for the child; and

(d) Any other matter relevant to the child’s welfare and development.

7. In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:

(a) The other parent is to be notified as soon as practicable via SMS text message;

(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and

(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.

Restraints

8. Both parents are restrained by injunction from using or attempting to use any surname other than the surname Mudin in respect of the child, either formally or informally, for any purpose whatsoever.

9. The parents are restrained by injunction from denigrating the other parent, or members of the other parent’s family, to or in the presence or hearing of the child and shall immediately remove the child from the vicinity of any other person doing so.

10. The parents are restrained by injunction from physically disciplining the child or permitting any other person to physically discipline the child.

Airport Watch List

11. That each party, MR MUDIN born in 1983 and MS BASHAR born in 1983, and their servants and/or agents are hereby restrained by injunction, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing, attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia until 14 May 2030.

12. IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist, in force at all points of arrival and departure in the Commonwealth of Australia, and maintain the child's name on the Watchlist until the above date or unless the Court orders its removal.

Procedural Orders

13. Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer meet with the child, either by Microsoft Teams or in person if permitted, to explain to the child the Orders made by the Court.

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

I have, nonetheless, made orders providing for the father to communicate with the child by sending cards, letters and small gifts on special days. Hopefully, this will sow the seeds of a relationship that can be acted upon by the child at a point in time where he is not as influenced by the mother in his negative views of the father, which have resulted in the child’s unwillingness to spend time with his father. BACKGROUNDLength of marriage and subsequent relationship The father was born in 1983 and is now 38 years of age. The mother was born in 1983 and is also 38 years of age. The parties have one child from their relationship, X, born in 2012 and now aged 9. The father is employed as a transport professional and the mother is employed as a professional. The parties met in August 2008 and married by way of an Islamic marriage contract that was formalised in March 2009, with the wedding ceremony taking place in July 2009. There was a controversy in the proceedings as to whether the parties’ marriage was an arranged marriage. It has not been necessary to resolve that issue for the purpose of this decision. It was not disputed that, in or about October 2012, the marital tension between the parties was such that the father moved out of the marital bedroom and began sleeping on the couch. I am satisfied that the relationship between the parties during the period that they cohabited was volatile. The parties subsequently separated in January 2013. The father remarried in 2015 and has two children with his current partner, while the mother remarried Mr A in 2017.Events during the relationship The mother alleges that throughout the parties’ relationship, the father would:·Forcefully require her to engage in sex with him; ·Make violent contact with her including frequently pushing her to the ground;·Dictate what she would wear;·Insist on knowing her whereabouts;·Constantly belittle her;·Regularly insult her including calling her vulgar names including in front of his parents; and·Encourage his family to insult the mother. The father denies that he engaged in any such conduct. For reasons which I set out below, I am not satisfied that the father engaged in the acts of physical violence as alleged by the mother. On the other hand, there is at least one aspect of the father’s evidence that gives me reason to believe that he may have engaged in controlling conduct directed towards the mother, both during the course of their relationship and in respect to at least one incident after their separation. In early 2013, the father filed for an Islamic divorce. An agreement was subsequently drawn up by the Islamic Judicial Council which included:·Age appropriate visitation rights;·That the father pay $300 weekly for 3 months in addition to child support; and·After 3 months, that the father pay $75 in addition to child support. There is a dispute between the parties as to the extent to which that document was consensual. However, it has not been necessary to determine that issue as the terms of any such agreement have not influenced my decision in this matter.Post separation events

Evidence

Evidence Before The Court

On 15 September 2021, the matter was listed before me in order to hear the mother’s application to adjourn the final hearing set to commence on 16 September 2021. The matter subsequently proceeded to final hearing on 27 September 2021 for three days, with further hearing on 1, 7 and 8 October 2021.DOCUMENTARY EVIDENCE The father relied upon the following documents:·Affidavit of the father filed 9 September 2021;·Affidavit of the father’s partner filed 30 July 2021; and·Family report of Dr F dated 10 December 2014. The mother relied upon the following documents:·Response filed by the mother on 19 December 2013;·Affidavit of the mother filed 6 August 2021;·Affidavit of Mr M filed 6 August 2021;·Affidavit of the mother filed 7 September 2021;·Notice of Risk filed by the mother on 19 December 2013;·Affidavit of psychologist, Mr N, filed 22 September 2021; and·Tender bundle of documents produced under subpoena, provided 26 September 2021. The ICL relied upon the family report of Ms K dated 11 November 2019.APPLICATIONS To their credit, each of the parties significantly modified their initial applications in the context of evidence presented during the course of the proceedings. The final minute of order proposed by the father, as set out in Exhibit 12, is as follows:Parental Responsibility1.That the mother and father have equal shared parental responsibility for [X] born […] 2012 (“the child”).Live with2. That the child live with the mother. Time with3. That the child spend time with the father as follows:3.1For a period of four (4) weeks, from the conclusion of school on Friday or any other school day that’s available, or 3pm if that day is a non-school day, until 7pm, to be supervised by a private supervision agency such as [Supervision Service O], with such costs of supervision to be borne by the father.3.2Following the time provided in Order 3.1 herein, for a period of four (4) weeks, from 9am until 2pm each Saturday or Sunday with changeover to be effected with the assistance of a private supervision agency such as [Supervision Service O], with such costs of changeover to be borne by the father.3.3Following the time provided in Order 3.2 here, for a period of eight (8) weeks, from the conclusion of school on Friday or 3pm if that day is a non-school day, until 5pm on Saturday in each alternate week, with changeover to be effected with the assistance of a private supervision agency such as [Supervision Service O], with such costs of changeover to be borne by the father, if changeover is not taking place at the child's school.3.4 Thereafter:3.4.1During school term time, from the conclusion of school on Friday (or 9am if that day is a non-school day) until the commencement of school on Monday (or 5pm if that day is a non-school day) in each alternate weekend.3.4.2During the school holiday periods at the conclusion of Terms 1, 2 and 3, for one (1) week commencing at the conclusion of the last day of school term until 9am on the following Saturday at the midpoint of the school holiday period, unless otherwise agreed between the parties in writing.3.4.3During the school holiday period at the conclusion of Term 4, for two (2) separate one (1) week periods, taken in separate blocks, the first to commence at the conclusion of the last day of school until 9am on the morning of the 8th day thereafter, and the second to commence at 5pm at the conclusion of the 3'd week of the school holiday period until 9am on the morning of the 8'h day thereafter, unless otherwise agreed between the parties in writing.4.That the father notify the mother and the child's school of the start date for supervised time pursuant to Order 4.1 herein.Special Occasions5.That unless otherwise agreed between the parties in writing, the child spend time with the father from 9am on the day of Eid-ul-Fitr until 5pm three days later.6.That unless otherwise agreed between the parties in writing, the child spend time with the mother from 9am on the day of Eid-ul-Adha until 5pm three days later.7.That notwithstanding any other Order herein, the child spend time with the mother from 5pm on the night immediately before Mother's Day until the commencement of school on the Monday immediately after Mother's Day.8.That notwithstanding any other Order herein, the child spend time with the father from 5pm on the night immediately before Father's Day until the commencement of school on the Monday immediately after Father's Day.Therapeutic assistance9.That this Order authorise the father to engage the assistance of a child and family therapist (“the therapist”) to provide a forum for the child to discuss any difficulties encountered with the time arrangements and the father shall forthwith provide to the mother the name of the therapist and details of any appointment scheduled between the child and the therapist.Changeover10.That to effect changeover of the child where not specified in these Orders, unless otherwise agreed in writing, the father shall collect the child from school or the maternal grandfather's residence at the commencement of his time and the father shall return the child to school or the maternal grandfather's residence at the conclusion of his time.Exchange of information11. That the mother shall forthwith notify the father of the following information:11.1 The address at which the child resides;11.2 The name of the school at which the child attends;11.3The name of the child's treating general practitioner and any other medical treatment provider; and11.4The details of any extracurricular activities that the child is involved in.12. The parents shall otherwise keep one another informed at all times of:12.1Their current residential address and contact telephone number and advise the other parent of a change in such details within 24 hours of such change occurring;12.2Any medical problems or illnesses suffered by the child while in their respective care;12.3 Any medication that has been prescribed for the child;12.4Any social, school or religious functions which the child is to attend; and12.5 Any other matter relevant to the child's welfare13.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:13.1 The other parent is to be notified as soon as practicable;13.2The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and13.3The medical practitioner or facility is to be advised that both parents have access to the child's medical records and information retained by them upon request.Communication14.The parents shall communicate in relation to all matters concerning the child including any decisions to be made in regard to the child's education, health and extracurricular activities, by email or by text, save for in an emergency, where they shall communicate via text message.15.In the event that the parties are unable to reach agreement regarding the child's education, health and/or extra-curricular activities, they are to both forthwith attend upon a mediator, with the mother to provide three names of proposed mediators within 48 hours and the father to select one 48 hours thereafter, to resolve the dispute.Restraints16.That the mother be restrained from attending the child's school at the commencement of the father's time or authorising any other person to attend the child's school at the commencement of the father's time.17.That both parents are restrained by injunction from using or attempting to use any surname other than the surname [MUDIN] in respect of [X], born […] 2012, either formally or informally for any purpose whatsoever.18.That the parents are restrained by injunction from denigrating the other parent or members of the other parent's family to or in the presence or hearing of the child and shall immediately remove the child from the vicinity of any other person doing so.19.That the parents are restrained by injunction from physically disciplining the child and permitting any other person to physically discipline the child.Airport Watch List [MR P]20. That each party, [MR MUDIN] born […] 1983 and [MS BASHAR] born […] 1983 and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, [X] born […] 2012 from the Commonwealth of Australia until 14 May 2030.21.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the above date or unless the court orders its removal.Procedural Orders22.That the parties have liberty to apply on 7 days' notice to the Court and to the other party in the event of non-compliance with these Orders(As per the original)

Decision

Reasons for decision

Accordingly, the orders I make will focus upon the father retaining, at least, a connection with the child through the ability to provide gifts and short messages to the child from time to time. Hopefully, this will establish a degree of communication such that a future relationship between the child and his father is viable and fostered. Significantly, it would also provide, at least, a link to the possibility of the child having a relationship with his father and his paternal family, including his two sisters, at a point in time in the future. CONCLUSION AND ORDERS Parental responsibility The mother sought sole parental responsibility. Both the ICL and the father sought an order for equal shared parental responsibility. I am not satisfied that it is practicable for there to be an order for equal shared parental responsibility. In that respect, ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for the parties to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:(2) The order is taken to require the decision to be made jointly by those persons.…(3) The order is taken to require each of those persons:(i)to consult the other person in relation to the decision to be made about that issue; and(ii) to make a genuine effort to come to a joint decision about that issue. As a result of the matters to which I have referred, I am of the opinion that the parents lack that capacity to make decisions in accordance with s 65DAC. Accordingly, in all the circumstances to which I have referred, I am satisfied that the presumption of equal shared parental responsibility should not be applied. In circumstances where the child will be living with the mother, I will make an order that the mother have sole parental responsibility.Live with For reasons which I have previously set out, the orders will provide for the child to continue to live with the mother, in circumstances where she has been the child’s primary carer since his birth. I do not make orders compelling the mother to facilitate the child spending time with the father because it would be a futility to do so. I will however, make an order that the child is to spend time with the father as agreed between the mother and the father and, as and from when the child turns 13 years of age, the child shall spend such time with his father as he wishes. This provides the opportunity for the child’s relationship with the father to be developed as the child matures and is able to make a determination as to whether he wishes to have a relationship with his father. This will be a possibility in the context where subsequent orders will provide for a channel of communication to take place between the father and the child. For reasons which I have set out, I decline to make an order in accordance with paragraph 4 of the mother’s proposed orders, which would effectively terminate all meaningful contact between the child and the father. Communication between the child and the father

Ratio Decidendi

Legal Principle Established

There is a dispute between the parties as to the extent to which that document was consensual. However, it has not been necessary to determine that issue as the terms of any such agreement have not influenced my decision in this matter.Post separation events For a relatively brief period following the parties’ separation, the child spent some time with the father as organised between the parents. Regrettably, however, those arrangements broke down when the child was about 15 months old following a dispute that occurred between the parties in a park located near the mother’s sister’s residence. The mother contends that the incident which gave rise to her ceasing to facilitate the child having contact with the father occurred on 31 August 2013, when she attended the park usually attended to facilitate changeover with the child, accompanied by her brother-in-law, to meet the father. The mother contends that aggressive conduct on the part of the father motivated her decision to stop facilitating the child spending time with the father. The father has spent very little time with the child since that time. The father disputes that he was aggressive and contends that the aggression was displayed by the mother and her brother-in-law. The father commenced proceedings in the Federal Circuit Court of Australia, as it was then known, on 23 August 2013, at which time the mother was living at her sister’s residence in Suburb B. There have been several orders of the Court requiring the mother to cooperate with a supervised contact regime by taking the child to visit the father at several different contact centres. For reasons which I set out below, I am satisfied that the mother has failed to cooperate with the purpose and intent of those orders and, indeed, has acted in a manner to deliberately thwart the success of those contact visits, thereby depriving the child of the opportunity to have a relationship with his father. The father has not spent time with the child since supervised contact occurred in December 2015 at a contact centre in Suburb C. At paragraph 51 of his affidavit filed 9 September 2021, the father attests that “in late 2017 I indicated my intention to withdraw from court proceedings as I felt [the mother’s] hindrance of proceedings and disregard for court orders was delaying any chance of forming a relationship with [the child].” The father further contends that this decision resulted from the fact that he was financially unable to commit to the mounting legal costs associated with the proceedings and unfortunate health concerns regarding his daughter from his new relationship. There are, however, inconsistencies in the father’s explanation as to why he effectively withdrew from the proceedings in 2017. As will be set out below, there has been a protracted litigation history which, in large part, has been a result of the father failing to engage in the proceedings. This has been a contributing factor to the current situation where the child has not spent time with the father since 2015.