O’Laughlin and Akkad and Anor

[2017] FamCA 993

FAMILY COURT OF AUSTRALIA

O’LAUGHLIN & AKKAD AND ANOR [2017] FamCA 993

FAMILY LAW – CHILDREN – PARENTING – Interim

APPLICANT: Ms O’Laughlin

RESPONDENT: Mr Akkad

2^nd RESPONDENT: Ms Jerez

FILE NUMBER: SYC 7227 of 2017

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duc

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE 2^ND RESPONDENT: Mr Johnston

SOLICITOR FOR THE 2^ND RESPONDENT: Ciaglia Legal

Orders

1. The matter be adjourned to 2pm on 30 January 2018 for conclusion of these interim proceedings. I note the reasons for the adjournment are:

   1.1.The paternal grandmother filed material out of time and the mother consequently lost the opportunity to file an affidavit in reply;

   1.2.The father now appears unrepresented and awaits the outcome of an application for legal aid.

2. The father is to file a Notice of Address for Service as soon as practicable.

3. Until 5pm 30 January 2018 B (the child) live with the mother.

4. Until 5pm 30 January 2018 the child spend time with the paternal grandmother:

   4.1.Each alternate weekend from 5pm Friday to 5pm Sunday; and

   4.2.Overnight from 10am on Monday that is closest to the weekend when B is with her mother to 10am on Tuesday.

5. For the purposes of the preceding order the paternal grandmother shall collect B from the mother’s residence at C Street, Suburb D at the commencement of time the child is to spend with her and deliver the child to the mother’s residence at the conclusion of the paternal grandmother’s time with the child.

6. The child shall spend time with the father as agreed between the father and paternal grandmother. I note that the father resides in the home of the paternal grandmother.

7. The child is not to be removed from the Sydney metropolitan area unless all parties consent in writing.

8. The mother is not to expose the child to any sexually explicit imagery, conduct or language nor expose the child to any activity in which she engages in her business.

9. Each party is to keep the other informed of their residential address and contact telephone numbers including landline, mobile and email address on which they and the child may be contacted.

10. By consent, the father is to be restrained from approaching or coming within 100 metres of the mother or her place of residence or employment.

11. The Watch List Orders 3 to 5 made 20 November 2017 are to continue and are in the following terms:

    3.  Until further order the applicant Ms O’Laughlin born … 1990 and the respondent Mr Akkad born … 1988, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, B (female) born … 2015 (“the child”) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.

    4.  Until further order, B born … 2015, be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

    5.  Unless the Court otherwise orders, the order placing the name of the child on the Watch List shall lapse 12 months from the date her name is placed on the Watch List.

12. I note that the paternal grandmother wishes to file as an exhibit, additional electronic communication passed between the parties. That can be done by way of exhibiting material to an affidavit to be filed and served by 8 December 2017.

13. The mother is to file and serve any evidence in response by 15 December 2017.

14. The father is to file any response and affidavit by 25 January 2018.

Order made in chambers

1. Pursuant to s 68L Family Law Act the child B born … 2015 shall be separately represented and Legal Aid NSW is requested to arrange such representation.

2. The Registry Manager or her nominee notify the Senior Solicitor, Family Law Litigation, Legal Aid NSW of these Orders within 7 days from today.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Laughlin & Akkad and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7227 of 2017

MS O’LAUGHLIN

Applicant

And

MR AKKAD

Respondent

And

MS JEREZ

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am not dealing with the mother’s application today by way of concluding the interim hearing.  There are two reasons for that: 

   1.1.The paternal grandmother did not comply with the order I made in terms of putting her evidence on by the date that I ordered.  The consequence of that was that the mother has not been able to take advantage of the order that I made that gave her an opportunity to reply to what the paternal grandmother has filed by way of evidence; and 

   1.2.The father now appears today himself and has made an application for legal aid to be legally represented and asks for an adjournment on that basis. 

   For those reasons, I granted the adjournment.

2. I have indicated that the matter will come back to me at 2 pm on 30 January 2018 for a conclusion of these interim proceedings.  The decision that I have to make is what orders should be made between now and then to organise the parenting arrangements for B (the child).

3. It seems common ground that in the early part of the child’s life, the mother was her primary caregiver, although there was some assistance given by the paternal grandmother from time to time.  There is a significant difference in the evidence given by the mother and the evidence that I have read from the paternal grandmother’s side as to the care arrangements for the child from about April 2016 and particularly this year.    

4. The mother hasn’t had an opportunity to respond to what the paternal grandmother has said, and I’m unable today to make any assessment of that factual dispute in any confident way.

5. The mother makes some very serious allegations involving family violence, directed at the father of the child, who is a member of the paternal grandmother’s household. Today the father appears, having not filed any evidence as he was ordered to do, for the reasons that he has given.  I don’t have his side of the story in relation to the very serious allegations that are made against him in respect of family violence. I am unable to make any assessment as to the significance of the allegations of family violence in this interim hearing today. 

6. The paternal grandmother does not seem to deny her son’s involvement with an outlawed organisation and doesn’t seem to be in a position to give any evidence about many of the very serious allegations that the mother makes against the father of family violence. 

7. The paternal grandmother’s complaint in relation to the mother’s parenting capacity revolves mainly around the mother’s chosen business and the associations that the paternal grandmother says the mother has as a result of carrying out that business.

8. It seems relatively clear that there was a working relationship between the mother and the paternal grandmother in relation to the care of the child, up until 23 October 2017.  At that time, there seems to have been a communication by the mother to the paternal grandmother that it was the mother’s intention to relocate the child to Melbourne.  There was also, at that time, a serious issue and possible misunderstanding as to an insult that may or may not have been made by the paternal grandmother to the mother.  Those two things combined escalated into a situation where the child was retained for a significant period of time, before the mother made an application to the Court for a recovery order.

9. The mother will not be moving to Melbourne with the child, pending the final determination of this hearing, because I have made an order that she not do so.  She consented to that order on the last occasion.  The child is only two years and 10 months old.  I made a comment during submissions that it’s generally accepted that it is not good for a child of B’s age to be frequently moving between households.  She needs some stability in the next 10 weeks or so.

10. As I have said, I do not yet have the father’s response to the very serious allegations made in relation to family violence. I don’t have anything other than the mother’s very serious allegations, apart from some general expressions by the paternal grandmother that she doesn’t believe her son would have done some of the things that have been alleged, and some evidence that would point in the direction of the father not being a risk to the child. However, given the seriousness of the allegations and given that the father is a member of the paternal grandmother’s household, I find that in about the next nine weeks, until 5 pm on 30 January 2018, it is in the child’s best interests that she live most of her time with her mother, but spend regular time with the paternal grandmother.  I note that the father resides at the home of the paternal grandmother.  I note that the paternal grandmother wishes to file as an exhibit additional electronic communication that has passed between the parties.  That can be done by way of exhibiting that material to an affidavit within seven days.  The mother is to file and serve any material that she wishes in response within a further 14 days.

11. Counsel for the paternal grandmother is to file and serve her evidence by 8 December.  The mother is to file and serve her further evidence by 15 December.  The father is to file any response and affidavit by 25 January, and the father is to file a notice of address for service as soon as is practicable. 

12. The matter is otherwise adjourned to 2 pm on 30 January 2018 for further consideration of what interim orders should be made on an ongoing basis.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 1 December 2017.

Associate: 

Date:  5.12.17