Najam & Fayed
[2021] FamCA 107
•9 March 2021
FAMILY COURT OF AUSTRALIA
Najam & Fayed [2021] FamCA 107
File number(s): PAC 318 of 2021 Judgment of: FOSTER J Date of judgment: 9 March 2021 Catchwords: FAMILY LAW – CHILDREN – interim Parenting – best interests – where child seriously ill – where parties not agree as to where child should reside upon discharge from hospital – where conflict between parties – where interim order made for child to live with mother and for the mother to have sole parental responsibility and consult the father – where matter adjourned for short period to allow parties to consider issues. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60C, 61DA, 65DAA Cases cited: Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92MRR v GRR (2010) 240 CLR 461
Number of paragraphs: 69 Date of hearing: 8 February 2021 Place: Parramatta Counsel for the Applicant: Ms Hayward Solicitor for the Applicant: T & S Law Firm Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Thurlows Family Lawyers ORDERS
PAC 318 of 2021 BETWEEN: MR NAJAM
ApplicantAND: MS FAYAD
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
8 FEBRUARY 2021
PENDING FURTHER ORDER AND WITHOUT PREJUDICE AND WITHOUT ADMISSION BY EITHER PARTY IN RELATION TO ANY FURTHER OR OTHER INTERIM OR FINAL ORDERS TO BE SOUGHT BY THEM, THE COURT ORDERS THAT:
1.Pending further order, the mother have sole parental responsibility for the child X and in the exercise of that responsibility she before making any significant decision in relation to the child and, in particular, the child’s ongoing medical and care or circumstances consult the father.
2.Pending further order, the child live with the mother.
3.Pending further order, the child spend time with the father as agreed between the mother and the father.
4.The father do all necessary things and sign all necessary documents so as to authorise and direct that upon the child being discharged from hospital she be discharged into the mother’s care and not otherwise.
5.Pending further order, the father be restrained by himself, his servant or agents from removing or seeking to remove the child from the day-to-day care of the mother.
6.Reasons for judgment to be published at a later date.
7.The father file and serve a Response to the mother’s Initiating Application and any affidavit sought to be relied upon by him in support of any interim orders sought by him by no later than the close of business on Friday, 12 February 2021.
8.The Registrar’s duty callover date of 11 February 2021 vacated.
9.These proceedings are adjourned for judicial case management, and if necessary interim hearing, to 9.30 am on Friday, 12 February 2021.
10.Due to the ongoing situation with the coronavirus (COVID-19), attendance in person is not required, but you are required to attend by telephone via AAPT telelink at the judicial case management listing before Justice Foster on Friday, 12 February 2021 at 9.30 am.
Notation
To attend by AAPT telelink, you are required to:
·Dial service provider on … (+61 … from overseas)
·At the prompt, enter the Guest Passcode …
·You will hear music until the "chairperson" (ie, Court) is ready (please be patient)
· Please be aware that other matter/s may be listed at the same time where attendances may be by telephone. Please wait for an appropriate time to announce yourself clearly, and, if it appears that his Honour may be dealing with another matter, remain patient until your matter is announced.
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 Najam & Fayed has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
These are interim proceedings in relation to the child X born in 2017 (“the child”) and presently aged four years. She currently suffers a terminal illness for which she has been admitted in and out of hospital for some time.
An Initiating Application was urgently filed by the mother on 25 January 2021 in circumstances where the father unilaterally retained the child in his care. In that Application the mother seeks the following orders on an interim and final basis:
(1)That the parties shall have equal shared parental responsibility for the long term care, welfare and development of the child.
(2)That the child shall live with the mother.
(3)That the child shall spend time with the father as follows:
(a)From 5.00 pm Saturday to 8.00 pm Monday each week.
(b)From 5.00 pm to 8.00 pm Wednesday each week.
(c)From 5.00 pm to 8.00 pm Thursday each week.
(d)At such other time as agreed between the parents.
The applicant also sought further orders relating to non-denigration and information sharing.
The father is yet to file documents in these proceedings but correspondence from his solicitor has been annexed to the mother’s affidavit in which he raises concerns in regards to the mother’s mental health and proposes that the mother be restricted to supervised time with the child.
On 8 February 2021 the following interim orders were made without prejudice and without admission by either party in relation to any further or other interim or final orders to be sought by them:
(1)That the mother have sole parental responsibility for the child and consult the father before making any significant decision in relation to the child, particularly the child’s ongoing medical care;
(2)That the child live with the mother;
(3)That the child spend time with the father as agreed between the parties;
(4)The father do all things necessary to authorise that the child be discharged into the mother’s care upon her release from hospital; and
(5)The father be restrained from removing the child from the care of the mother.
Reasons for these orders were to be published at a later date, and these are those reasons.
Context
The applicant mother was born in 1988 and is now 32 years of age. The respondent father was born in 1988 and is also 32 years of age.
The parties married in mid 2012 and commenced cohabitation on 16 December 2012. They separated on a final basis in July 2019.
The child was diagnosed with cancer in August 2018 and made a full recovery. She was medically cleared on 14 November 2019.
The parties entered into a parenting plan in March 2019 (“the 2019 parenting plan”) which specified the child’s residential and time arrangements. This plan was followed until 31 December 2020.
The 2019 parenting plan outlined that the child was to live with the mother and to spend time with the father at least three times a week.
In her affidavit, the mother deposes that the child suffers from separation anxiety when away from the mother, and to address this the child would routinely co-sleep with the mother on a daily basis.
The mother asserts that during changeover on 31 December 2020 the father became verbally abusive towards the mother and refused to return the child. She deposes that she screamed at the father but agreed to allow the child to go with the father to be returned the next day.
On 1 January 2021 the mother was placed under arrest in relation to the incident on 31 December 2020 and was notified that an application had been made for an Apprehended Domestic Violence Order (“ADVO”) against her for the father’s protection.
The mother affirms that she made many attempts to retrieve the child by contacting friends and relatives of the father but was ultimately unsuccessful.
On 7 January 2021 the mother was notified by B Hospital that the child would be admitted to the emergency department. She was later informed that large tumours had been detected in the child’s body requiring her to resume chemotherapy.
The mother does not agree with the concerns of the father as expressed in correspondence through his lawyer and is concerned that the child’s separation from her is causing the child unnecessary distress. The mother is also concerned that she has not been able to effectively participate in the decision making process in regards to the child’s ongoing medical treatment.
The mother’s concerns about the father
Prior to recent events the mother and father had a functional co-parenting relationship with the mother stating that her and the father “both encouraged healthy co-parenting in order to promote a caring and loving environment” for the child.
On 4 December 2020 the mother informed the father of a proposal of marriage which she had received and was considering. This led to the breakdown of the functional co-parenting relationship.
On 5 December 2020 during a changeover event the father verbally abused the mother in the presence of the child using words such as “Our whole marriage was a sham. You toyed with my emotions. You’re burning bridges. I’m going to make sure my family don’t speak to you again. I’m going to take X away from you and you will never see her again.”
The mother deposes that the father grabbed the child and removed her from the location of the argument after the child told him to “calm down” and was visibly upset, before he continued to berate the mother.
Annexed to the mother’s Affidavit are copies of text messages exchanged between the mother and father following the mother informing the father of the proposal in marriage which she received.
The text messages show the father’s belligerent attitude towards the mother, accusing her that she has “lost her mind” and is “not mentally fit” and repeatedly threatening that he will “take” the child.
The father’s attitude towards the mother caused her to “experience feelings of anxiety, panic, short breath, confusion and guilt” and reminded her of “the sense of control” which the father exercised throughout their marriage.
On 31 December 2020 there was a further incident during a changeover.
The mother asserts that during this incident the father verbally abused the mother for approximately 10 minutes, in the presence of the child, in relation to the proposal in marriage which she was considering.
It is deposed that the mother screamed at the father, demanding for him to return the child to the mother, however, the father proceeded to leave the premises with the child and pushed the mother when she followed him.
The mother asserts that the child said “Daddy you’re scaring me” and in order to prevent further conflict the mother allowed the father to leave with the child on the basis that she would be returned the following day.
On 1 January 2021 police attended the mother’s house and placed her under arrest in relation to the incident on the preceding day.
Being arrested and placed in the back of a police truck caused the mother to suffer an acute panic attack and to be admitted to the psychiatric ward of C Hospital.
On 2 January 2021 the mother was released from hospital with her discharge summary outlining that she presented with an acute stress reaction to being arrested on a background of complex PTSD and interpersonal conflict with her ex-partner. She was identified as being of low risk and high functioning.
Between 1 January 2021 and 7 January 2021 the mother attempted to have the child returned to her care by contacting various friends and family members of the father and also seeking legal advice.
The mother is concerned that the father is using his assertions as to her mental health history to alienate her from the child as retaliation to the mother informing the father of her marriage proposal.
Understandably, the mother holds serious concerns for the welfare of the child who is being used as a pawn within the parental separation conflict.
Prior to the father failing to return the child to the mother’s care, the mother had played the substantive role in the child’s daily routine. This routine included the mother taking the child for recreational activities, weekly visits with the child’s friends and co-sleeping with the child on a nightly basis.
It is deposed that the child has experienced separation anxiety from the mother and the mother has serious concerns as to the toll prolonged separation from the mother is taking on the child.
Interim Parenting
In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. (emphasis added). This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Deiter (supra) the Court was there concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The relevant principles in relation to parenting are well settled Goode and Goode [2006] FamCA 1346. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
(a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));
(b)In interim proceedings, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)); and
(c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the “legislative pathway”.
In this matter the presumption is not to apply being interim proceedings where it is it not appropriate to apply same.
Thus the orders to be made are guided by the best interests principles.
The primary considerations: s 60CC(2)
The primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright [2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[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”. I proceed on the basis that 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 quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
It appears from the mother’s evidence that prior to the incident on 31 December 2020 the child enjoyed a meaningful relationship with each parent. She deposes that the 2019 parenting plan “worked very well” and that she and the father “managed to co-parent in a very amicable and healthy manner.”
The arrangements in the 2019 parenting plan allowed for both the mother as primary carer and for the father to spend significant time with the child, allowing them each to build a meaningful relationship with the child.
Both the mother and the father enjoyed taking the child for various outings and the mother deposes of an outing in November 2020 when the parents together took the child to a playground.
The orders proposed facilitate the continuation of the child’s meaningful relationship with both the mother and father, within the current context of rapidly escalating parental conflict.
Section 60CC(2)(b) – the need to protect
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Since the mother informed the father of her proposal in marriage on 4 December 2020, there has been substantial parental conflict. The child has been exposed to parental conflict at two handover events. On 5 December 2020 the father verbally abused the mother in the presence of the child. At this event the father vituperated the mother in response to the mother informing the father of her receipt of a proposal in marriage and it is deposed that the father threatened to “take” the child and that the mother would “never see her again”. The mother asserts that the child was “visibly upset” and asked the father to “calm down” and the father responded by grabbing the child and placing the child in a different room before continuing to verbally abuse the mother.
The second incident occurred at a changed over on 31 December 2020. At this changeover event the father again verbally abused the mother, for approximately 10 minutes. This caused the mother to scream at the father in response. The father refused to return the child to the mother’s care and attempted to remove the child from the premises. The mother followed the father and the mother deposes that the father pushed her as she attempted to follow him. It is asserted that the child told the father “Daddy you’re scaring me” and in order to protect the child the mother allowed the father to leave with the child.
From 31 December 2020 until 7 December 2020 the mother made contact with the father’s friends and relatives in an attempt to have the child returned to her care.
On 7 January 2021 the child was admitted to B Hospital. The mother asserts that she attended B Hospital on 7 January 2021 but the father prevented the mother from visiting the child. Again on 13 January 2021 the father attempted to prevent the mother from having contact with the child at B Hospital, however, a social worker enabled the mother to visit the child.
The mother deposes that during this visit the child appeared panicked and said words to the effect of “Don’t cry otherwise daddy will get angry” and “I love you mum. I want to come home with you.”
In light of the mother’s evidence with particular regards to the events of 5 December 2020 and 31 December 2020 and the father’s continuing efforts to prevent the mother from having contact with the child it is apparent that there is a real risk the child may be exposed to psychological harm and family violence.
This second consideration is, therefore, supportive of the interim orders made on 8 February 2021.
The Additional Considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act and are considered below.
The child is of tender age, and clearly there are no relevant views given.
The nature of the child’s relationship with each parent is considered briefly above. Both parents have a close and significant relationship with the child, however, the daily routine of the child prior to 31 December 2020 included residing and co-sleeping with the mother.
The Court accepts that there may be a potentially negative effect on the child if she is not able to return to these arrangements once she is released from hospital, however, given the concerns raised about the father as discussed above, the need to protect the child from harm is given primacy.
These are interim proceedings that await final determination in due course.
It is in the best interest of the child that orders be made as sought on an interim basis and that the matter be back before the Court urgently.
Orders will be made accordingly.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 9 March 2021
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