Paterson & Hamdy (No 2)

Case [2023] FedCFamC1A 209

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Paterson & Hamdy (No 2) [2023] FedCFamC1A 209

Appeal from: Paterson & Hamdy (No 3) [2023] FedCFamC1F 629
Appeal number: NAA 226 of 2023
File number: SYC 1229 of 2018
Judgment of: AUSTIN, HOGAN & KARI JJ
Date of judgment: 30 November 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals final parenting orders providing for no contact between himself and the children – Where all but two grounds were abandoned – Where the father contends the orders imposing restraints and injunctions on him with respect to the youngest child are unreasonable or plainly unjust – Where the primary judge carefully and separately considered each of the s 60CC Family Law Act 1975 (Cth) factors – Where there is no merit in either ground of appeal – Appeal dismissed – Father to the pay the mother’s costs in a fixed sum.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 68B, 114
Cases cited:

Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Luck v University of Southern Queensland (2018) 265 FCR 304; [2018] FCAFC 102

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Number of paragraphs: 49
Date of hearing: 21 November 2023
Place: Heard in Sydney, delivered in Newcastle
Counsel for the Appellant: Ms Edwards
Solicitor for the Appellant: Coleman Greig Lawyers
Counsel for the Respondent: Ms Conte-Mills
Solicitor for the Respondent: Chidiac Legal

ORDERS

NAA 226 of 2023
SYC 1229 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR PATERSON

Appellant
AND:

MS HAMDY

Respondent

ORDER MADE BY:

AUSTIN, HOGAN & KARI JJ

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Further Amended Notice of Appeal filed 20 November 2023 is dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the amount of $4,136.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paterson & Hamdy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN, HOGAN & KARI JJ:

INTRODUCTION

  1. This is an appeal by the father from certain parenting orders made on 31 July 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1) in relation to the parties’ 13 year…

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AGLC
Paterson & Hamdy (No 2) [2023] FedCFamC1A 209
Case
[2023] FedCFamC1A 209
Decision Date

CaseChat Overview and Summary

The appeal, brought by Mr. Paterson against Ms. Hamdy, pertains to final parenting orders made by the Federal Circuit and Family Court of Australia in relation to their children. The primary judge ruled that the children should remain with the mother and that there should be no contact between the children and the father, a decision that Mr. Paterson challenges. The father’s appeal, initially based on several grounds, was narrowed down to two specific contentions regarding the final parenting orders: he argued that the orders imposing restraints and injunctions on him with respect to the youngest child were unreasonable or plainly unjust.

The court examined the father’s appeal under the framework of section 60CC of the Family Law Act 1975 (Cth), which outlines the best interests of the child as the paramount consideration in parenting matters. The primary judge meticulously evaluated each of these factors, particularly emphasizing the children's expressed views and their evident apprehension towards the father. The judge concluded that the children had a strong desire not to engage with their father and that they felt stalked by him, sentiments that heavily influenced the decision. The father’s assertions that the mother had influenced the children's views were not substantiated by the judge, who did not find in favour of the father on this point.

The court found no merit in the father’s grounds of appeal. The appeal was dismissed, and the father was ordered to pay the mother's costs in a fixed sum of $4,136. The reasons for the decision reflect a comprehensive assessment of the children's best interests, with the court upholding the primary judge's findings and orders. The appeal process, therefore, resulted in no alterations to the parenting orders initially set forth by the primary judge.

Orders

Orders of the court

NAA 226 of 2023

SYC 1229 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PATERSON

Appellant

AND:

MS HAMDY

Respondent

ORDER MADE BY:

AUSTIN, HOGAN & KARI JJ

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Further Amended Notice of Appeal filed 20 November 2023 is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the amount of $4,136.

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).

Background

Background to the litigation

For the reasons that follow, the appeal is dismissed.BACKGROUND The parents’ relationship commenced in 2003. The children of the relationship were born in 2005 and 2010. While there was a dispute about when separation occurred (July 2015 on the mother’s case and July 2017 on the father’s case), the primary judge concluded she did not need to determine that dispute. The father was incarcerated between 2015 and 2019 (serving 3 years and 9 months of a 6 year and 3 month sentence). The father commenced parenting proceedings some 15 months prior to his release in early 2018. The children have lived solely with the mother since the father’s incarceration in 2015. They have not spent any time with the father, nor have they communicated with him since 2016. The primary judge was satisfied the father had minimised the reason for his incarceration. The charges which the father were convicted of were of a serious criminal nature. The trial before the primary judge was heard between 1–4 May 2023, with judgment delivered and final parenting orders made on 31 July 2023. The primary judge recorded (at [1]) that in the early stages of the trial, the father “sensibly decided not to seek orders” about the eldest child, given her age. Against that backdrop:(a)There was no dispute between the parties that the children ought to remain living with the mother.(b)The dispute between the parents was whether the younger child spend any time with the father; the mother promoting orders for no time spending or communication, and the father promoting a three monthly incrementally increasing regime of time spending commencing on a supervised basis and building to unsupervised time spending each alternate weekend from the conclusion of school Friday until the commencement of school Monday. The primary judge was satisfied that the children did not wish to have any relationship with the father. In addition, the primary judge was satisfied that the children “have a heightened sense of concern about the father” stalking them (at [153]). The father’s case before the primary judge, which was unchanged in the appeal, is that the mother has “brain washed” the children, and there is no proper basis for their views and fears of him. The primary judge did not make any findings in that regard. The mother additionally made allegations of family violence. The primary judge however was not asked to make any findings in relation to these allegations and did not do so. Equally, the primary judge was not asked to make any finding that the father was an unacceptable risk of harm to the children. Again, no such finding was made. Appropriately in coming to a decision about the parenting orders to be made, the primary judge carefully considered each of the factors identified in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) to make orders considered to be in the best interests of the children. It is apparent from the reasons that the primary judge placed some considerable weight on the views expressed by the children (at [63]–[75], [85]–[90], [125], [132]–[133], [136], [151]–[152]).

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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