Rasheem & Rasheem

Case [2024] FedCFamC1F 595

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rasheem & Rasheem [2024] FedCFamC1F 595

File number(s): PAC 2690 of 2024
Judgment of: ALTOBELLI J
Date of judgment: 6 September 2024
Catchwords:

FAMILY LAW – PARENTING – Where the mother seeks to reconsider parenting orders under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the father opposes this – Where the Court considers the nature and scope of s 65DAAA – Where s 65DAAA is materially different to the previous common law position – Where the Court declines to reconsider the parenting orders – Where the parties disagree on the utility of additional expert evidence – Where no further evidence is required.

FAMILY LAW – PROCEDURE – Where the father seeks to dismiss the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose this – Where the Court finds that the Independent Children’s Lawyer has fulfilled their role – Where the Independent Children’s Lawyer remains appointed.

FAMILY LAW – INJUNCTION – Where the father alleges that the children’s treating psychologist is biased against him – Where the father seeks a s 68B injunction against the mother from causing the children to receive therapy from the psychologist – Where the Court finds that the psychologist had acted outside of her role and caused additional conflict – Where the Court restrains the mother under s 68B of the Act.

Legislation:

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60I, 64B, 65DAAA, 68B, 68LA

Family Law Amendment Act 2024 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.04

Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)

Second reading speech, Family Law Amendment Bill 2023, Senate Hansard, 17 October 2023

Cases cited:

Ainsley & Ainsley (No 2) [2022] FedCFamC1F 455

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Bennett v Bennett (2001) FLC 93-088; [2001] FamCA 462

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

Dawar & Dawar [2019] FamCA 569

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Hartley & Hartley [2021] FedCFamC1F 178

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51; [1996] HCA 24

Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Langmeil & Grange [2013] FamCAFC 31

Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165

Lloyd and Lloyd and Child…

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Details
AGLC
Rasheem & Rasheem [2024] FedCFamC1F 595
Case
[2024] FedCFamC1F 595
Decision Date

CaseChat Overview and Summary

In this matter, the mother applied to reconsider the final parenting orders made in August 2023, which provided for the children to spend increasing time with the father, including overnight time. The father opposed the reconsideration. The mother also applied for a restraint against the children seeing their treating psychologist, claiming bias. The father opposed this application. The mother further sought to discharge the Independent Children’s Lawyer appointed by the Court. The father opposed this application. The Court dismissed the mother's application to reconsider the parenting orders, found that the psychologist had acted outside of her role and caused additional conflict, and thus restrained the mother from causing the children to receive therapy from the psychologist. The Court also dismissed the father's application to discharge the Independent Children’s Lawyer. The Court considered the new statutory test espoused by s 65DAAA of the Family Law Act 1975 (Cth), which is materially different to the previous common law position. The Court found that the psychologist had acted outside of her role and caused additional conflict. The Court therefore restrained the mother from causing the children to receive therapy from the psychologist. The Court found that the Independent Children’s Lawyer had fulfilled their role and dismissed the father's application to discharge the Independent Children’s Lawyer. The Court declined to order further expert evidence as the mother had not provided a clear basis for the need for further evidence. The Court ordered that the mother comply with all existing orders in relation to the children.

The Court ordered that the mother's application to reconsider the parenting orders be dismissed. The Court ordered that the father's time with the children resume in accordance with the final parenting orders made on 18 August 2024. The Court ordered that no further expert material be produced in these proceedings. The Court ordered that the mother be restrained from causing the children to receive therapy from Ms RR. The Court ordered that the father's application to discharge the Independent Children's Lawyer be dismissed. The Court ordered that should either party seek costs from these proceedings, they must file and serve an application and any affidavit material in support. The Court ordered that within 14 days of the filing of such application the Applicant for the purposes of the costs application file and serve written submissions, not exceeding 1000 words, together with any further material in support. The Court ordered that within 14 days thereafter, the Respondent file and serve a response to the application for costs, any affidavit material in support, and written submissions not exceeding 1000 words. The Court ordered that within seven days thereafter, the Applicant must file and serve any submissions in reply, not exceeding 250 words. The Court ordered that thereafter, judgment shall be reserved, and the matter determined on the papers. The Court noted that the form of the order is subject to the entry in the Court’s records and that this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors.

Orders

Orders of the court

PAC 2690 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RASHEEM

Applicant

AND:

MR RASHEEM

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

6 SEPTEMBER 2024

THE COURT ORDERS THAT:

Parenting

1. The Applicant’s application to re-open parenting proceedings under s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) be dismissed.

2. The Respondent’s time with X, born 2018 and Y born 2019 (“the children”) resume in accordance with the final parenting orders made on 18 August 2024.

3. No further expert material be produced in these proceedings.

Restraints

4. The Applicant be restrained under s 68B of the Act from causing the children to receive therapy from Ms RR.

Independent Children’s Lawyer

5. The Respondent’s application to discharge the Independent Children’s Lawyer be dismissed.

Costs

6. Should either party seek costs from these proceedings, they must file and serve an application and any affidavit material in support.

7. Within 14 days of the filing of such application the Applicant for the purposes of the costs application file and serve written submissions, not exceeding 1000 words, together with any further material in support.

8. Within 14 days thereafter, the Respondent file and serve a response to the application for costs, any affidavit material in support, and written submissions not exceeding 1000 words.

9. Within seven days thereafter, the Applicant must file and serve any submissions in reply, not exceeding 250 words.

10. Thereafter, judgment shall be reserved, and the matter determined on the papers.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons for judgment explain why the Court has dismissed the mother’s application under s 65DAAA of the Act, dismissed the father’s application for the removal of the Independent Children’s Lawyer, dismissed the need for further expert evidence, and ordered that the mother be restrained from causing the children to receive therapy from the psychologist pursuant to s 68B of the Act. The mother must comply with all existing orders in relation to the children.BACKGROUND The mother is 33 years old and is employed as a professional within her father’s business. The father is 36 years old and is employed as a manager. The parties commenced their relationship in 2012, were engaged in 2013 and married in 2015. The parties separated on a final basis on 15 January 2020. There are two children to the relationship, X and Y. The final orders were made on 18 August 2023: Rasheem & Rasheem (No 4) [2023] FedCFamC1F 690 (“Rasheem”). The final orders provided for the mother to have sole responsibility for the children, for the children to live with the mother and for the children to spend gradually increasing time with the father. The mother was also permitted to apply for Australian passports for the children, and both parents were permitted to travel overseas with the children on conditions. The father was able to spend special occasion time with the children during their school holidays, on Orthodox Easter, Good Friday, Christmas Day, Father’s Day, and their birthdays. The father was required to submit to hair follicle testing and provide a letter from his treating doctor detailing the same. The Independent Children’s Lawyer was to continue in that role for a period of 12 months after the final orders were delivered. The final orders prescribed a four stage increase in the time the children were to spend with the father. The first stage continued for a period of three months and allowed the children to spend supervised time with the father on each alternate Sunday from 9.30 am to 2.00 pm and each Thursday from 10.00 am to 2.00 pm until the oldest child commenced school, and from after school to 6.00 pm thereafter. The second stage commenced after the initial stage and continued for a further three months. The children were to spend each alternate Sunday from 9.30 am to 4.00 pm and each Thursday from 10.00 am to 2.00 pm until the oldest child commenced school, and from after school to 6.00 pm thereafter. The third stage of the final orders provided for the children to spend time with the father each Wednesday after school/daycare to 6.00 pm and each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday. Importantly, the third stage in the final orders was the first to introduce overnight time. The children were scheduled to begin this third stage of time before the mother unilaterally suspended contact with the father. The crux of the mother’s application is that it is not in the children’s best interests to allow overnight time to occur.Findings in Rasheem

Evidence

Evidence Before The Court

A restraint against the mother causing the children to see the psychologist ought to be granted under s 68B of the Act. Whilst the law is clear that the Court does not need to have regard to the best interests of the children in making this restraint (Bennett v Bennett (2001) FLC 93-088 at [30]), such a restraint is nonetheless appropriate for the children’s welfare. The psychologist was, regrettably and unintentionally, one catalyst for increased conflict between the parents. It is appropriate for the children to seek therapy, but not from this therapist.THE EVIDENCE OF THE PSYCHOLOGIST The psychologist prepared a letter, at the request of the mother, on 2 May 2024 (Exhibit A1). The letter is headed “Note of concern” and recommends ceasing all overnight time between the children and the father due to their alleged reaction to previous time spent with him. The mother used the letter to cease all contact except on her terms – “I concluded that I could not continue to allow time to progress per Final Orders 18 August 2024 as it would be harmful to the boys” (mother’s affidavit, paragraph 22). The psychologist’s letter is clearly, therefore, an important part of, if not the cornerstone of the mother’s case. The recommendation made by the psychologist is in the penultimate paragraph of her letter which is reproduced below:I strongly recommend that the children do not have overnight access with their father and that this occur when they are feeling more comfortable and less anxious about separating form (sic) their mother. This recommendation should be in place as of today as there appears to be an overnight visit pending this weekend and I have deep concerns should this go ahead. The most important, and obvious fact is that the recommendation was that there be no “overnight access”. That, of course, is not what the mother chose to do. It is not clear to the Court precisely how the mother rationalises reliance on the letter of the psychologist whilst ignoring its key recommendation. In an attempt to justify her extreme position, the mother references concern expressed by UU Services, NSW Police and the DCJ. The mother does not provide any call references or contemporaneous notes of her conversations with the DCJ or with UU Services. Similarly, the COPS entry dated May 2024 (Exhibit A15) does not detail what advice, if any, the mother received from NSW Police that enabled her to justify an immediate suspension of time contrary to the final orders. Moreover, the Court is deprived of any record of what the mother told these authorities. The mother bore the burden of proving that concerns expressed by UU Services, NSW Police and the DCJ justified deviating from the psychologist’s recommendation. The fact that the mother solicited the psychologist’s letter and unilaterally suspended all time with the father is concerning given the facts above. Weight to be given to the psychologist’s letter There are numerous other difficulties with placing too much weight on the psychologist’s letter.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Elements of this application are governed by s 65DAAA of the Act. This provision is new and has undergone little scrutiny. Section 65DAAA relevantly provides:65DAAA Reconsideration of final parenting orders(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered. (2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following: (a) the reasons for the final parenting order and the material on which it was based;(b) whether there is any material available that was not available to the court that made the final parenting order;(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order. (3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. Section 65DAAA came into effect on 6 May 2024 by virtue of the Amendment Act. As will be explained through reference to extrinsic material, the new s 65DAAA provision was intended to codify the common law rule established in Rice and Asplund. The new statutory test espoused by s 65DAAA operates in a substantively different manner to the rule in Rice and Asplund. The Court agrees with the reasoning provided by Judge O’Shannessy in Whitehill & Talaska [2024] FedCFamC2F 768 (“Whitehill & Talaska”) in this respect. Nonetheless, these reasons shall elaborate further on why such reasoning is correct.Extrinsic material Section 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) allows the Court to have regard to extrinsic material to “confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. In preparing this judgment the Court has considered the Explanatory Memorandum of the Amendment Act (Interpretation Act s 15AB(2)(e)), the second reading speech prior to the Amendment Act (Interpretation Act 15AB(2)(f)), and the Australian Law Reform Commission report that prompted a review into the area (Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019) (“ALCR 135”) (Interpretation Act 15AB(2)(b)).