FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nihal & Nihal [2024] FedCFamC2F 96
File number(s): SYC 5320 of 2021 Judgment of: JUDGE BECKHOUSE Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Coercive order made for the mother to return to Sydney from Melbourne with the child – Court determined that rare and extreme circumstances established Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 65DAA Cases cited: Adamson & Adamson (2014) FLC 93-622
Franklyn & Franklyn [2019] FamFAFC 256
Morgan & Miles [2007] FamCA 1230
Oswald & Karrington [2016] FamCAFC 152
Sampson & Hartnett (No 10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 205 Date of last submission/s: 21 December 2023 Date of hearing: 18, 19, 20 and 21 December 2023 Place: Sydney Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: First Choice Family Lawyers Counsel for the Respondent: Mr Wilkinson Solicitor for the Respondent: Winder Lawyers Counsel for the Independent Children's Lawyer: Ms Hayward Solicitor for the Independent Children's Lawyer: Hazim & Co Lawyers Pty Ltd ORDERS
SYC 5320 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NIHAL
Applicant
AND: MS NIHAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
23 JANUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior parenting orders be hereby discharged.
Parental responsibility
2.The parents shall have equal shared parental responsibility for the child, X born in 2017.
Living arrangements
3.X shall live with the Mother.
4.By no later than Monday, 22 April 2024, X shall be relocated to live in the Greater Sydney area in New South Wales and from that time the parents are restrained from relocating X’s primary residence from the Greater Sydney area, unless by further Order or written agreement.
Spend time arrangements before X’s relocation to the Greater Sydney area
5.Pending compliance with Order 4, the Father shall spend time with X as agreed between the parties, and failing agreement, as follows:
(a)From 20 January 2024, at 9 am until 3 pm the following Saturday, being 27 January 2024.
(b)From 10 February 2024 each week from Saturday 9am to Sunday 3pm.
(c)For one half of all Victorian School Term Holidays as agreed between the parties, and failing agreement, from 9 am on the Saturday immediately following the actual last day of school, until 3 pm on the following Saturday.
(d)Communication via electronic means in accordance with Order 10.
6.In order to facilitate X spending time with the Father in accordance with Order 5, and on the basis the Father is travelling to Melbourne to collect the child by car, changeover will occur, unless otherwise agreed in writing, at C Park, with the Mother to deliver X there at the commencement of his time with the Father and the Father…
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CaseChat Overview and Summary
The primary legal issues before the court involved assessing the best interests of the child and determining whether the coercive orders proposed by Mr. Nihal were justified. The court had to consider the implications of each parent's proposed living arrangements, the child's current living situation, and the potential impact on the child's well-being, including educational and social considerations. The court also evaluated the necessity and proportionality of the coercive orders requested by Mr. Nihal.
Judge Beckhouse concluded that the best interests of the child were served by a relocation of the child to Sydney, with specific arrangements for the father's time with the child before and after the relocation. The court found that the rare and extreme circumstances justified the coercive orders, ensuring that the child would reside in Sydney and that the father would have substantial time with the child under supervised conditions. The court's reasoning emphasised the importance of stability and the child's need to maintain connections with both parents, balanced against the practicalities of the parents' proposed living arrangements. The court's orders included detailed provisions for the child's schooling, communication between the parents, and the enforcement of restrictions on physical discipline and derogatory remarks.
In conclusion, the court ordered that the child would live with the mother in the Greater Sydney area, with specific time-sharing arrangements for the father before and after the relocation. The court also issued coercive orders to facilitate the relocation and established detailed provisions for communication, health, and education. The Independent Children’s Lawyer was tasked with supporting the mother and child during the relocation, and the parties were directed to engage with support services as necessary. The court dismissed the application for costs by the Independent Children's Lawyer.
Orders
Orders of the court
SYC 5320 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NIHAL
Applicant
AND:
MS NIHAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
23 JANUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. All prior parenting orders be hereby discharged.
Parental responsibility
2. The parents shall have equal shared parental responsibility for the child, X born in 2017.
Living arrangements
3. X shall live with the Mother.
4. By no later than Monday, 22 April 2024, X shall be relocated to live in the Greater Sydney area in New South Wales and from that time the parents are restrained from relocating X’s primary residence from the Greater Sydney area, unless by further Order or written agreement.
Spend time arrangements before X’s relocation to the Greater Sydney area
5. Pending compliance with Order 4, the Father shall spend time with X as agreed between the parties, and failing agreement, as follows:
(a) From 20 January 2024, at 9 am until 3 pm the following Saturday, being 27 January 2024.
(b) From 10 February 2024 each week from Saturday 9am to Sunday 3pm.
(c) For one half of all Victorian School Term Holidays as agreed between the parties, and failing agreement, from 9 am on the Saturday immediately following the actual last day of school, until 3 pm on the following Saturday.
(d) Communication via electronic means in accordance with Order 10.
6. In order to facilitate X spending time with the Father in accordance with Order 5, and on the basis the Father is travelling to Melbourne to collect the child by car, changeover will occur, unless otherwise agreed in writing, at C Park, with the Mother to deliver X there at the commencement of his time with the Father and the Father to return X there at the conclusion of his time.
7. In the event the Father is travelling to Melbourne to collect X by air, changeover will occur at the Melbourne Airport which the Father is arriving at, with the Mother to deliver the child to that airport at the commencement of X’s time with the Father and the Father to return X there at the conclusion of his time.
8. For the purpose of Order 7, the Father shall provide the Mother with a flight itinerary no later than three (3) days prior to that travel.
Spend time arrangements after X’s relocation to the Greater Sydney area
9. After seven days of X’s arrival in the Greater Sydney area, X shall spend time with the father as agreed between the parties, and failing agreement, as follows:
(a) Each alternate weekend from Friday after school (or 3 pm if a non-school day) to Sunday at 5 pm;
(b) Commencing in the second week of the second New South Wales (“NSW”) school term in 2024, each alternate Thursday from after school (or 3 pm if a non-school day) to Sunday 5 pm;
(c) Commencing in the second week of the first NSW school term in 2025, each alternate Wednesday after school (or 3 pm if a non-school day) to Monday before school (or 9 am if a non-school day);
(d) During all New South Wales school holiday periods, inclusive of the longer December/January school holiday period, during the first half of school holidays in odd numbered years commencing from the date of these Orders, and during the second half of the school holidays in even numbered years;
(e) On days of special significance to the parties and/or X by agreement and failing agreement on the following special occasions:
(i) On New Year's Eve, commencing at 6 pm on New Year's Eve and concluding at 6 pm on New Year's Day in even-numbered years and alternating with the mother each year thereafter.
(ii) If the father's birthday falls on a day and the father is not already spending time with X, then the father spends time with X on his birthday from 4 pm until 9 pm,
(iii) If X's birthday falls on a day when X is not in the care of the father or the mother then they shall spend time with X on X's birthday from 6 pm until 9 pm,
(iv) If Father's Day falls on a day when X is not in the care of the father then X shall spend time with the father on Father's Day commencing at 6 pm the day before Father's Day until 6 pm on Father's Day;
(v) If Mother’s Day falls on a day when the mother does not have care of X, the mother will have care of X commencing at 6 pm the day before Mother’s Day until 6 pm on Mother’s Day notwithstanding any other order.
(vi) On the first day of Eid al-Fitr, commencing from 5 pm the day prior until 6 pm on the first day of Eid al-Fitr in even-numbered years and alternating with the mother each year thereafter; and
(vii) On the first day of Eid al-Adha, commencing from 5 pm the day prior until 6 pm on the first day of Eid al-Adha in odd-numbered years and alternating with the mother each year thereafter;
(viii) From 9 am on the twenty-sixth day of Ramadan (the Night of Power) until 5 pm one day later in even-numbered years and alternating with the mother each year thereafter; and,
(ix) From 9 am on the ninth day of Thul-hijjah (the day of Arafat), until 5 pm one day later in odd-numbered years and alternating with the mother each year thereafter;
(x) At such other times and by such other means as may be agreed between the parties.
10. Whilst X is in the care of a party, the other party be entitled to communicate with him by Skype, text message, FaceTime and/or telephone at such times as agreed between the parties or failing agreement, every second day between 6 pm and 6.30 pm and the party do all things necessary to encourage and facilitate such communication.
11. Unless otherwise agreed between the parents in writing, changeovers shall occur at X’s school and, on a non-school day, at a location nominated by the mother provided it is within 15 kilometres of D School.
Schooling
12. By no later than the commencement of the NSW school term 2 on 29 April 2024, X shall be enrolled in and attend either D School or such other school that is nominated by the Mother, but provided the school nominated by the mother is within a 15-kilometre radius of D School and within a 3-kilometre radius of her residential address.
13. The Father will take all steps necessary to support X’s enrolment at D School, or such other school that is nominated by the Mother, including providing and signing all necessary documents, purchasing required school uniforms, purchasing required school supplies, and paying any school enrolment fees on behalf of X.
Communication
14. Each parent notifies the other within twenty-four (24) hours of any changes to their contact telephone number or email address.
15. The mother must notify the father that she has relocated to the Greater Sydney Area within twenty-four hours of her arrival.
16. The parties provide a copy of these orders to any out of school care, recreational organisation, school, and medical practitioners (“the agency”) which X from time-to-time attends and each party is to:
(a) List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving X anytime a situation arises requiring an emergency contact, together with one alternative contact in the event that neither parent is able to be reached on such occasion;
(b) Authorise such agency to communicate with each party on matters relating to X’s welfare and education, including school events;
(c) Authorise such agency to provide notices, newsletters and reports directly to each party; and
(d) Authorise such agency to contact each party in the event of an emergency.
17. If X suffers any significant injury, illness or require any medical attention while in the care of a party, that party shall notify the other as soon as practicable, but no later than one hour, of said injury, illness or medical treatment.
18. At changeovers each party is to provide to the other any medication prescribed for X whilst X is in that party’s care together with any information or directions provided by X’s treatment providers or health professionals as to how that medication is to be taken by or administered to X, and each party is to ensure that X takes, or that they administer to X, any prescribed medication in accordance with such directions while X is in their respective care.
19. Both parents shall keep the other advised of the health of X including any serious illness, medication or hospitalisation of either X as soon as reasonably practicable or to allow the other parent to visit the X if hospitalised.
Restraints
20. The parties are hereby restrained from the following:
(a) Physically disciplining X;
(b) Making any critical, disrespectful, disparaging, or derogatory remarks about the other parent or any member of the other parent's family or household to X, or in the presence or hearing of X or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.
Implementation of Orders
21. The Independent Children’s Lawyer (“ICL”) will take whatever steps are reasonably necessary and within the scope of their role to support X and the Mother with their relocation to Sydney including referring the mother to emergency housing services and a family support service such as the E Program.
22. The Mother will do all acts and things necessary to engage with any support services she is referred to by the ICL.
23. Within thirty (30) days of relocating to NSW, the Mother will consult with a GP for the purpose of obtaining a referral for a mental health assessment and/or mental health treatment plan.
24. The ICL is discharged six (6) months from the date of these Orders.
25. The ICL and the Mother are permitted to provide a copy of these Orders and Reasons for Judgment if required for the purposes of providing support services to the mother and X.
26. If any Application is filed in respect of the enforcement of these Orders, it should be listed before Judge Beckhouse provided it is filed within six (6) months of the date of these Orders.
Costs
27. The ICL’s Application for costs be dismissed.
THE COURT NOTES THAT:
A. In accordance with the Victorian Government website (being www.vic.gov.au) the first day of Term 1 2024 in Victoria is 30 January 2024.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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