FAMILY COURT OF AUSTRALIA
| RASHID & HIJAZ | [2018] FamCA 619 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility – Where the mother seeks for the child to live with her in Australia and spend time with the father in Australia – Where the father seeks for the child to spend time with him in the USA twice per year – Where the child was born in the USA – Where the mother unilaterally relocated with the child to Australia – Where the mother alleges coercive and controlling conduct on the part of the father and his mother – Court finds there would be an unacceptable risk of the child being retained in the USA if she were to travel there – Court finds safeguards would not adequately ameliorate the risk – Court is not satisfied of conduct amounting to controlling or coercive conduct as contemplated by s 4AB of the Act – Presumption of equal shared parental responsibility satisfied – Orders made for the child to live in Australia with the mother – Orders made for the child to spend substantial and significant time with the father when he is present in Australia – No orders made for the child to spend time with the father in the USA. |
| Family Law Act 1975 (Cth) ss. 43, 60B, 60CC, 60CA, 61DA, 65DAA, 65DAC Convention on the Rights of the Child arts. 3, 18 Hague Convention on the Civil Aspects of International Child Abduction |
| AMS v AIF (1999) 199 CLR 160 Fogarty, J, ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249 |
| APPLICANT: | Mr Rashid |
| RESPONDENT: | Ms Hijaz |
| FILE NUMBER: | SYC 145 of 2015 |
| DATE DELIVERED: | 17 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 26 - 28 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Spain |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
Parenting orders
The child, X, born … 2009 (“the child”) live with the mother.
The parties have equal shared parental responsibility for the child.
In the event that the father travels to Australia during the school term, then the child will spend time with the father as agreed between the parties and in the absence of such agreement, as follows:
(a)On the first weekend that the father is in Australia, from Friday after school (or 3.00 pm if a non-school day) to 6.00 pm Sunday and each alternate weekend thereafter; and
(b)Monday and Wednesday each week from after school (or…
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- AGLC
- RASHID & HIJAZ [2018] FamCA 619
- Case
- [2018] FamCA 619
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific orders concerning where the child would live, the nature of parental responsibility, and the detailed arrangements for the child spending time with each parent, both during school terms and holidays. This included provisions for special occasions such as birthdays and Christmas, as well as communication and notification protocols between the parents. The court also had to consider orders relating to the child's welfare, including preventing her removal from Australia.
McClelland J made orders by consent and by determination. The child was ordered to live with the mother, with both parents having equal shared parental responsibility. Detailed provisions were made for the child to spend time with the father when he was in Australia, including specific arrangements for weekends, weekdays, and school holidays, with a requirement for the father to provide 14 days' notice of his travel plans. The orders also stipulated specific times for the child to spend with each parent on significant days like Mother's Day, Father's Day, their birthdays, and Christmas, with provisions for changeovers at the child's school or the mother's residence. Ancillary orders included provisions for communication, notification of addresses and contact details, and the mother retaining the child's passports. Crucially, both parents were restrained from removing the child from the Commonwealth of Australia, with a request for the Australian Federal Police to maintain the child's name on the Airport Watch list until March 2027.
Orders
Orders of the court
Parenting orders
1.
The child, X, born … 2009 (“the child”) live with the mother.
2.
The parties have equal shared parental responsibility for the child.
3.
In the event that the father travels to Australia during the school term, then the child will spend time with the father as agreed between the parties and in the absence of such agreement, as follows:
(a) On the first weekend that the father is in Australia, from Friday after school (or 3.00 pm if a non-school day) to 6.00 pm Sunday and each alternate weekend thereafter; and
(b) Monday and Wednesday each week from after school (or 3.00 pm if a non-school day) to the commencement of school the next day (or 9.00 am if a non-school day).
4.
In the event that the father travels to Australia during the school holidays, then the child will spend time with the father as agreed between the parents and in the absence of such agreement, each alternate week for seven nights, commencing at 4.00 pm on a date to be elected by the father and concluding at 4.00 pm, seven days later.
5.
The school holiday period is said to commence at 9.00 am the day following the last day of the school term and conclude at 6.00 pm the day before the first day of the next school term.
6.
Upon the father travelling to Australia, he is to notify the mother of his intention to spend time with the child and the dates upon which he proposes that occur, 14 days prior to spending that time with the child.
7.
Notwithstanding any other order made herein and unless otherwise agreed between the parties, the child shall spend time with the mother, as follows:
(a) From 9.00 am to 5.00 pm on Mother’s Day when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(b) From 9.00 am to 5.00 pm on the mother’s birthday when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(c) From after school (or 3.00 pm if a non-school day) to 6.00 pm on the child’s birthday, if the child is otherwise in the father’s care on that day; and
(d) From 9.00 am on Christmas Eve to 3.00 pm on Christmas Day in years ending with an odd number and from 3.00 pm Christmas Day to 6.00 pm Boxing Day in years ending with an even number.
8.
Notwithstanding any other order made herein and unless otherwise agreed between the parties, if the father is present in Australia at the relevant time, the child shall spend time with the father, as follows:
(a) From 9.00 am to 5.00 pm on Father’s Day when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(b) From 9.00 am to 5.00 pm on the father's birthday when it falls on a non-school day or from after school to 7.00 pm when it falls on a school day;
(c) From after school (or 3.00 pm if a non-school day) to 6.00 pm on the child’s birthday, if the child is otherwise in the mother’s care on that day; and
(d) From 9.00 am on Christmas Eve to 3.00 pm on Christmas Day in years ending with an even number and from 3.00 pm Christmas Day to 6.00 pm Boxing Day in years ending with an odd number.
9.
When changeover is to occur in accordance with the commencement or conclusion of the child’s school day, it shall occur at the child’s school. Otherwise, changeover shall occur by the father collecting the child from the mother’s residence at the commencement of his time with her and returning her to the mother’s residence at the conclusion of that time.
10.
By consent, each party take the child to her social events (including birthday parties) and extracurricular activities when the child is in their care.
11.
Each party be permitted to attend the child’s school and extra-curricular activities normally attended by parents, when the child is not otherwise in their care.
Ancillary orders
12.
By consent, in the event the child is taken to hospital for any reason or consults a specialist whilst in either party’s care, that party shall promptly inform the other party of the name of the hospital and treating doctor and authorise the other party to contact the hospital/doctor/specialist to make enquiries as to the child’s wellbeing.
13.
The child have telephone communication with the father when she is not otherwise spending time with him, at times as agreed between the parties and in the absence of such agreement, each Monday, Wednesday and Friday for up to 30 minutes from 5.30 pm to 6.00 pm.
14.
By consent, each party notify the other of the address and telephone numbers of the place/s where the child will be staying during holiday periods in Australia spent away from their residence, no later than 24 hours prior to the commencement of any such holiday.
15.
By consent, neither party shall criticise or denigrate the other to the child or within hearing distance of the child.
16.
By consent, the mother shall send the child’s report cards to the father each year and keep the father informed of the child’s health and progress at school and the child’s residential address, mobile phone number and email address at all times.
17.
By consent, each party notify the other, no more than 48 hours after any change to their address, landline phone number, mobile phone number and/or email address.
18.
The mother retain possession of the child’s passports and be permitted to apply for renewals of the same, upon their expiration.
19.
Each party, Mr Rashid, born … 1961 and Ms Hijaz, born … 1983, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X, born … 2009 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia until 17 March 2027.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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