Obeid & Mannan
[2022] FedCFamC2F 436
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Obeid & Mannan [2022] FedCFamC2F 436
File number(s): PAC 4625 of 2019 Judgment of: JUDGE STREET Date of judgment: 20 June 2022 Catchwords: FAMILY LAW – PARENTING – undefended hearing – parenting orders made as requested by respondent mother – Court satisfied proposed orders in best interests of children Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CC, 61C, 61DA, 65DAA
Federal Circuit and Family Court of Australia Act2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.26, 10.27
Cases cited: A & Z [2006] FamCA 179
Goode & Goode [2006] FamCA 1346
Lancey & Lancey [1994] FamCA 94
Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 28 March 2022 Place: Parramatta Solicitor for the Applicant: No appearance Solicitor for the Respondent: Ms Sharma Solicitor for the Independent Children’s Lawyer: Ms Court ORDERS
PAC 4625 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OBEID
Applicant
AND: MS MANNAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
28 MARCH 2022
THE COURT ORDERS THAT:
1.The matter will proceed as an undefended hearing.
2.The Court makes orders 1 -17 of the Orders in the amended response, attached as ‘Annexure A’.
3.The appointment of the Independent Children's Lawyer be discharged.
4.The Court reserves its reasons for decision, to be published on a later date.
THE COURT NOTES THAT:
1.The parties are excused from attending the listing for publication of the reasons and will be emailed a copy of the reasons once published.
ANNEXURE A – ORDERS SOUGHT IN THE ‘AMENDED RESPONSE TO INITIATING APPLICATION’
1.All Previous orders be discharged.
2.That the Respondent Mother shall have sole parental responsibility for the children, X (dob: 2006), Y (dob: 2012) and Z (dob: 2015) ("the children").
3.That the children live with the Respondent Mother.
4.That Orders 5 and 6 be contingent on the Father's compliance with Orders 7, 12 and 13.
5.That the children Y and Z spend time with the Applicant Father under supervision at the B Contact Service ("B Contact Service") at Suburb C for two hours each alternate Saturday at dates and times as nominated by the Service.
6.That should X express a wish to the Mother to spend time with the Father, the Mother will facilitate X spending supervised time with the Father facilitated by B Contact Service and at such times as his siblings.
7.That the Father shall be responsible for initially making contact to arrange supervision, continuing to engage as required and paying all fees nominated by B Contact Service for the provision of its services.
8.That if the father consistently attends the contact visits for a six (6) month period, and the reports of the visits indicate that the supervised time is positive for the children, after six (6) months of supervised time, the Father shall spend unsupervised time as agreed between the parties in writing, and failing agreement, each alternate Saturday from 11 am to 1 pm.
9.That to facilitate the time in Order 8, the Mother shall deliver the children to the front entrance of Woolworths in Suburb E located at D Street, Suburb E, in the state of New South Wales at the commencement of the visits, and the Father shall return the children to this location at the conclusion of the visits.
10.That neither parent will discuss these proceedings with the children or show them any document connected with these proceedings.
11.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
12.That the Father shall continue to engage with and attend upon Mr E Clinical Psychologist (or another appropriately qualified psychologist the details of which should be provided to the Mother within 14 days of the initial appointment), comply with all reasonable treatment proposed by such psychologist and provide the Mother with reasonable evidence of this engagement and compliance.
13.That the Father shall forthwith enrol in the next available Tuning into Kids' parenting course and upon completion of such course the Father shall provide to the Mother a copy of a certificate of completion.
14.That the Mother shall retain the children's passports.
15.That the Mother shall have sole parental responsibility for the children, to cause and/or permit the application for or renewal of any passport for the children without the signature of the other party.
16.That the Mother shall have sole parental responsibility for the children to provide all authorities necessary to cause and /or permit the children to travel to and from Commonwealth of Australia at any time.
17.That the Mother be permitted to travel with the children out of the Commonwealth of Australia, provided that:
17.1.The Mother provides notification to the Father of the proposed travel not less than 14 day before the travel;
17.2.So far as practical the occasions on which the Mother takes the children out of Australia are to coincide with the school holidays of public schools in New South Wales; and
17.3.In the event that the proposed travel will result in the children not attending a visit with the Father, prior to the period of travel, the Mother shall write to the Father and propose a makeup date for the missed visit to take place as soon as if reasonably practical upon the children's return.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Obeid & Mannan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These parenting proceedings were commenced by the Applicant Father on 19 September 2019. Relevantly, on 8 October 2021, a Judge of the Court made orders that required the Applicant Father to put on an affidavit by 24 December 2021. Those orders also foreshadowed that, in the prospect of noncompliance, the matter may proceed as an undefended hearing.
Orders were made on 2 February 2022 standing the matter over for hearing today. On 7 March 2022 a notice of discontinuance was filed by the Applicant Father. There had already been served on the Applicant Father, under the Court system, an amended response dated 1 February 2022.
The Court is satisfied that the Applicant Father had access to the Commonwealth Courts Portal at the time of the Respondent Mother’s filing of the amended response for final orders and was on notice of the prospect of there being an order for the matter to proceed as an undefended hearing, particularly as a result of the orders made by Dunkley J on 8 October 2021.
The Court has taken into account the principles identified in Lancey & Lancey [1994] FamCA 94 and in A & Z [2006] FamCA 179 at [66]. The Court has taken into account the overarching purpose for the efficient use of judicial and administrative resources under s 67 of the Federal Circuit and Family Court of Australia Act2021 (Cth).
The Court finds that there has been a default as defined within r 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), enlivening the Court’s powers under r 10.27. It is in these circumstances that the Court was satisfied it was appropriate to make an order that the matter proceed as an undefended hearing.
THE RESPONDENT MOTHER’S EVIDENCE AND SUBMISSIONS
The Respondent Mother relied upon her affidavit filed on 13 January 2022, as well as a family report dated 24 March 2021, a child-inclusive conference memorandum to the Court dated 18 May 2020, and a notice of risk dated 4 November 2019.
There are three children of the relationship which is the subject of these proceedings: X, who is now 16 years old, Y, a male born in 2012 and Z, a female born in 2015 (“the Children”).
The Respondent Mother’s affidavit identified that the relationship between the parties commenced upon being married on in 2004 and legally married in Australia in 2005, and that the relationship finally ended in around February 2015. The affidavit of the Respondent Mother identified that the parties lived under one roof until July 2015, and that the Children have lived with the Respondent Mother since that separation and the Applicant Father moving out of the home.
The Respondent Mother’s affidavit identified incidents of concern in relation to the oldest child. That child is now of an age where it is apparent, on the evidence before the Court, it is the wishes of the child that should prevail in relation to the meaningful and significant time that might be spent with the Applicant Father. It would be inappropriate of the Court to impose an order in relation to the eldest child being required to attend upon the Applicant Father, as it would not be in the best interests of the child and, in particular, there was an unacceptable risk that it may cause a level of anger in the eldest child, as identified in the family report.
The Respondent Mother’s affidavit identifies attempts to communicate with the Applicant Father, as well as incidents involving the eldest child. The Respondent Mother’s affidavit also identified what might be described as controlling behaviour by the Applicant Father.
The Court has taken into account the definition of abuse and the definition of family violence in respect of ss 4 and 4AB of the Family Law Act 1975 (Cth) (“the Act”).
The Respondent Mother’s affidavit also addressed the care of the Children following separation and what appears to be the lack of effort by the Applicant Father to take steps to meaningfully engage with the Children.
There was a recommendation given by the Respondent Mother that the Applicant Father engage in psychiatric testing and complete an anger management program. On the evidence before the Court, it is not apparent that those steps have been undertaken. Those issues are addressed in the proposed orders that were sought today as an undefended hearing.
There was also tendered an email, dated 25 March 2022 in respect of today’s hearing. In the circumstances, the Court was satisfied that it was appropriate to make an order that the matter proceed as an undefended hearing.
In determining whether or not the Respondent Mother’s proposed orders are appropriate and in the best interests of the Children, the Court must follow the statutory pathways identified in Goode & Goode [2006] FamCA 1346.
The Respondent Mother summarised the parenting events that had occurred since the commencement of the proceedings and also addressed the circumstances of each particular child.
The Respondent Mother’s affidavit identified the living arrangements and the time spent caring for the Children, and the steps taken by the Respondent Mother to seek additional expert support. The Respondent Mother’s affidavit also identified that steps had been taken to facilitate a relationship with the Applicant Father’s extended family.
THE FAMILY REPORT
The family report, dated 24 March 2021, which also made reference to the child inclusive conference dated 18 May 2020, identified the limitations of the assessment and set out the background of the relationships and the living arrangements of the parties. In particular, the family report identified concern in respect of the living arrangements for the Applicant Father in respect of the three Children. The family report addressed, in detail, the risk factors and the views of the respective parents. The family report addressed the differing views expressed as to the family violence and controlling behaviour
The family report noted that the Applicant Father said that the Respondent Mother is a very good mother to the Children, including cleaning and cooking for the Children. The Applicant Father alleged that the Respondent Mother had influenced the Children since he had left the house.
The Respondent Mother identified concern in relation to, in particular, the eldest child’s recollections of the Applicant Father being negative. The report identified that the youngest child had an attention deficit hyperactivity disorder, as well as other issues of anxiety, depression, and anger. The Respondent Mother identified that there were steps taken for positive reinforcement with the eldest son, and concerns as to whether the Applicant Father would be able to exercise such steps. The Respondent Mother identified that the youngest son had a lot of difficulties in school in 2020, partly due to the relationship with his elder brother, and concern was expressed in relation to the impact of the Applicant Father upon the elder brother.
The family report writer made a decision that it was not clinically appropriate to interview and observe the Children interacting with each parent, and referred to the lengthy time that has elapsed since, in particular, the younger two children had spent time with the Applicant Father. The family report writer made reference to the child inclusive conference, and consideration that had been given to the elder son’s additional needs. The family report writer identified that the Children did not currently have a meaningful relationship with the Applicant Father.
The family report writer identified risk of future abuse and the possible impact of past abuse upon the Children, and that the psychological and physical abuse perpetrated by the Applicant Father upon the eldest son appears to have had a detrimental impact on the eldest son’s psychological wellbeing, and particularly his self-esteem. The view was expressed that there was concern that, if the eldest son were exposed to further incidents of abuse, this would be likely to culminate in an escalation of the eldest son’s aggressive behaviour, creating a pertinent risk of harm to the two younger siblings. Reference was also made to the need for the Applicant Father to acknowledge and take responsibility for any abusive behaviours perpetrated, and to take action to reduce the risk of future abuse if the Children were in his care.
The report writer identified concerns relating to the Respondent Mother’s willingness to support the Children to have a meaningful relationship with the Applicant Father, and her ability to consistently prioritise the Children’s needs above her own.
The family report addressed the potential impact of the delay in the commencement of the Children spending time with the Applicant Father, and that he had demonstrated little insight into the impact on the Children of his absence in their lives.
The family report writer also identified that the Applicant Father is attributing sole responsibility to the Respondent Mother in relation to the Children having no relationship with him. The writer observed the Applicant Father’s apparent lack of insight in attribution of responsibility regarding his ability to appropriately respond to any issues with the Children as a result of his absence, and an inability to identify the difficulties that the Children may face in adjusting to spending time with him.
The family report writer identified that the Applicant Father had not taken opportunities for the Children to spend time with him. The writer also identified the potential harm to the Children if the Applicant Father is not consistent and reliable in relation to a future time.
The family report writer also identified the potential concerns from the Applicant Father not acknowledging his attitudes and behaviour as problematic. The report writer identified the particular risk to a child associated with ongoing contact with a perpetrator of coercive, controlling family violence.
The report writer also identified the potential impact of contact upon the Respondent Mother. The report writer recommended that the Respondent Mother have sole parental responsibility for the Children. The report writer identified a concern as to whether the Children would be able to build a meaningful relationship with the Applicant Father. The report also recommended that the eldest son spend time with the Applicant Father as per the eldest son’s wishes.
THE LAW
This Court must approach the parenting orders through the lens of Goode & Goode (2006) FamCA 1346 and the statutory regime. In summary, the amendments to pt VII of the Act have the following effect:
·Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that, until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children. Parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
·The making of a parenting order triggers the application of a presumption that it is in the best interests of the Children for each of the Children’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the Children or family violence, pursuant to ss 61DA(1) and 61DA(2) of the Act.
·If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it, pursuant to ss 61DA(1) and 61DA(3)) of the Act.
·The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the Children, pursuant to s 61DA(4) of the Act.
·When the presumption is applied, the first thing the Court must do is to consider making an order, if it is consistent with the best interests of the Children and reasonably practicable for the Children to spend equal time with each of the parents. If equal time is not in the interests of the Children or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the Children and reasonably practicable for the child to spend substantial and significant time with each of the parents, pursuant to ss 65DAA(1) and (2) of the Act.
The Act provides guidance as to the meaning of “substantial and significant time” in ss 65DAA(3) and (4), and as to the meaning of “reasonable practicability” in s 65DAA(5). The concept of “substantial and significant” time is defined in s 65DAA to mean:
·the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays; and
·the time the child spends with the parent allows the parent to be involved in:
·the child’s daily routine; and
·occasions and events that are of particular significance to the child; and
·the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the Children’s best interests, then the issue is at large and to be determined in accordance with the Children’s best interests.
The Children’s best interests are ascertained by a consideration of the objects and principles in s 60B of the Act and the primary and additional considerations in s 60CC of the Act.
When the presumption of equal shared parental responsibility is not applied, the Court is, at large, to consider what arrangements will best promote the Children’s best interests, including, if the Court considers it appropriate, an order that the Children spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time. But, as the best interests of the Children are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the Children to do so, after affording procedural fairness to the parties. The Children’s best interests remain the overriding consideration.
FINDINGS
The Court finds that the presumption under the statutory pathway of an equal shared parental responsibility has been rebutted in this case. This is by reason that the Court finds that the Applicant Father was engaged in controlling conduct, as alleged by the Respondent Mother constituting family violence. The Court also finds that this is not an appropriate case for there to be equal time spent by the children with each parent.
The Court is satisfied that there is an unacceptable adverse risk in relation to the eldest child. There is an unacceptable risk if the eldest child is required to attend upon his father, contrary to his own wishes. That unacceptable risk of harm has a real possibility and includes the abusive behaviour that might be exacerbated, both in relation to the adverse impact on the eldest son, as well as his siblings. In these circumstances, it is not in the best interests of the Children for there to be any order compelling time to be spent with the Applicant Father by the eldest child contrary to his wishes.
The Court is satisfied that it is an appropriate case in which it is in the best interests of the Children to order that the Respondent Mother have sole parental responsibility, and that the children primarily live with the Respondent Mother.
The Court is also of the view that, if the two younger children are to commence supervised access with the Applicant Father, it should be subject to and contingent upon the Applicant Father arranging for the supervision and consistently attending in contact for at least six months; arranging for the provision of these supervised services and that the father must engage with an appropriate psychologist, the details of which have to be provided to the mother, and provide the mother with reasonable evidence of engagement and compliance with the psychologist recommendations; as well as the father undertaking a parenting course, Tuning In To Kids. The proposed orders in the amended response then provide for supervised access. The Court is satisfied that the proposed orders are in the best interests of the three children. It is for these reasons that the Court made the orders pronounced on 28 March 2022.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street. Associate:
Dated: 17 June 2022
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