Rasul & Momin

Case [2022] FedCFamC1F 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rasul & Momin [2022] FedCFamC1F 325

File number(s): PAC 3390 of 2021
Judgment of: HANNAM J
Date of judgment: 13 May 2022
Catchwords: FAMILY LAW – Children – Interim parenting – where the mother seeks orders that the children spend no time with the father – where the ICL seeks orders that the children spend supervised time with the father – where the father seeks orders that the children spend graduating time with him increasing to alternate weekends – where the mother contends that the father may sexually abuse the children – Where the mother contends that the children may be exposed to family violence if orders are made as the father seeks – where in April 2020 the father was charged with two counts of sexually touching the parties’ older child who is severely disabled – where the father has not spent any time with the children since this time – where it was held that there was no prima facie case against the father and the charges were dismissed in the Local Court with costs – where the mother deposes to controlling behaviour by the father and numerous occasions of physical violence – where one occasion of violence resulted in the father being charged and convicted of assault occasioning actual bodily harm – where there is no need for an order for no time on an interim basis – where the need for supervision arises from a number of factors – where the ICL’s proposal most appropriately fosters the children’s relationship with both parents while protecting them from harm – where there may be practical difficulty and expense associated with the ICL’s proposal – where orders made which are consistent with the ICL’s proposal with some adjustment to account for practical difficulties
Legislation: Family Law Act 1975 (Cth) ss 60CC & 65D
Cases cited:

Deiter & Deiter [2011] FamCAFC 82

George & George [2013] FamCAFC 182

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

SS & AH [2010] FamCAFC 13

Division: Division 1 First Instance
Number of paragraphs: 129
Date of hearing: 23 November 2021 and 24 February 2022
Place: Parramatta
Counsel for the Applicant: Mr Cummings SC
Solicitor for the Applicant: Walter & Elliott Family Lawyers
Counsel for the Respondent: Ms Kaiti
Solicitor for the Respondent: Lawbridge Lawyers & Consultants
Counsel for the Independent Children's Lawyer: Mr Guterres and Mr Sperling
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Penrith

ORDERS

PAC 3390 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RASUL

Applicant
AND:

MS MOMIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT PENDING FURTHER ORDER:

1.X born in 2015 and Y born in 2017 (“the children”) shall live with the mother.

2.The children shall spend time with the father under the supervision of…

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AGLC
Rasul & Momin [2022] FedCFamC1F 325
Case
[2022] FedCFamC1F 325
Decision Date

CaseChat Overview and Summary

In the case of Rasul & Momin, the Family Court of Australia is tasked with determining the best interests of two children in a contentious custody dispute between their parents. The parents, who were married in 2011 and have two children, have been embroiled in allegations of domestic violence, emotional abuse, and significant disputes over parenting arrangements. The mother alleges ongoing physical and emotional abuse by the father, while both parents accuse each other of emotional abuse. The father was convicted of assault occasioning actual bodily harm in relation to an incident in May 2015, for which he received a good behaviour bond and an Apprehended Domestic Violence Order. The court must decide on the most appropriate interim parenting orders, considering the statutory guidelines under s 60CC of the Family Law Act.

The central legal issues revolve around the application of the primary considerations under s 60CC(2) of the Family Law Act: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. The court must weigh these considerations, giving greater weight to the protection of the children from harm. The court must also consider the practical implications of the proposed arrangements, the capacity of each parent to meet the children's needs, and the attitudes of the parents towards the children and their responsibilities.

The court found that while the father had been violent towards the mother, it was unlikely that a final hearing would result in a determination that the need to protect the children from harm justified no contact with the father. The court preferred the proposal of the Independent Children’s Lawyer (ICL) which aimed to preserve the children's relationship with their father while ensuring their safety through supervision, over the mother's proposal for no contact and the father's proposal for unsupervised contact. The court was concerned about the potential for the ICL's proposal to become unworkable, leading to no contact between the children and their father.

In conclusion, the court ordered that the children spend supervised time with their father, pending further proceedings to determine the final parenting arrangements. This decision ensures that the children maintain a relationship with their father, while their safety is safeguarded through supervision. The court emphasised the importance of meaningful relationships with both parents and the need to balance this with the imperative to protect the children from harm.

Orders

Orders of the court

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Background

Background to the litigation

The question for me to determine is which of the proposals is proper having regard to the best interests of the children as the paramount consideration.BACKGROUND The mother and father, who are aged 35 and 45 respectively, were both born in a South Asian country and met in a different overseas country in 2010. They were subsequently married in 2011 in the country of their birth where they resided together for a month following their wedding, before the father returned to Australia where he had been previously living. In October 2012 the mother’s visa application was approved and she joined the father and the paternal grandparents in Australia. At this time the parties lived with the paternal grandparents in a regional city. The mother alleges that she was subjected to family violence at the hands of the father throughout the marriage. She says that throughout the relationship she was responsible for all household duties and also deposes to incidents such as in November 2013 when the father assaulted her when she complained about this matter. In 2014 the parties moved to Sydney where the father had commenced employment. It is contended by the mother that following the parties’ relocation it was still expected that she and the father spend each weekend with the paternal grandparents and that she continue to be required to complete household duties while at the paternal grandparent’s home. She deposes to another occasion on which she was assaulted for complaining about this expectation. This is a matter to which I will return when considering matters of risk for the children. Both parties allege that throughout the relationship the other party was a perpetrator of emotional abuse. There is no dispute between the parties that on 12 May 2015 a violent incident took place between them at their home. The father was charged with assault occasioning actual bodily harm in relation to this incident and subsequently pleaded guilty to that charge. He was convicted and placed on a 12 month good behaviour bond and a 12 month Apprehended Domestic Violence Order (“ADVO”) was made against him for the protection of the mother. While the mother was in hospital as a result of the May 2015 assault, she was informed by doctors that she was one month pregnant with the parties’ older child. In 2015 the older child was born prematurely and as a result suffered from a number of medical issues. The older child was not discharged from hospital until 2016. Shortly after her birth she was diagnosed with Down Syndrome and at the age of eight months old was also diagnosed with epilepsy. In October 2017 the father purchased a home with the paternal grandmother which became the family home for the parties and the older child. The mother also operated a business from this home. In 2017 the parties’ second child (“the younger child”) was born. It appears to be common ground between the parties that there were ongoing arguments between them in which each alleges that the other was the aggressor. The mother also alleges that the father was physically violent to her on other occasions which is a matter to which I will return.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although there seems to be some dispute between the parties about the nature of the father’s previous involvement in the care of the older child, it appears beyond dispute that prior to physical separation both parents were significantly involved in the care of both children. In these circumstances it may be expected that prior to physical separation the children had meaningful attachment relationships with both parents. This is a particularly weighty factor when considering the proposal of the mother that the children spend no time with the father and there is no other means of fostering those relationships. For this reason, in my view, the proposal of the ICL which preserves the relationships between the children and their father while protecting them from harm through supervision is to be preferred over that of either of the parents.Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the childrenExtent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children These are not weighty matters in the competing applications for interim orders except to observe that the father has made diligent efforts as soon as his criminal proceedings were complete to participate in decision-making and spend time with the children through making this application for interim orders and appears committed to continuing that involvement in the children’s lives in the future.Practical difficulty and expense of a child spending time with and communicating with a parent As the mother proposes that the children spend no time with the father and have no communication with him, no associated practical difficulty or expense is entailed in her proposal. This is not, however, a weighty factor in favour of her proposal in the circumstances of this dispute. The question of practical difficulty and expense under the various proposals is most weighty when considering the proposal of the ICL. Initially, the ICL’s proposed orders were for the children to spend time with the father at a designated contact centre. After it came to light in the course of the interim hearing that a vacancy for this family may not become available at this centre for up to 18 months the ICL explored other options with private supervision services and ultimately proposed in oral submission that a particular service be utilised to facilitate that time. The ICL did not however reduce this proposal to writing and various components of it were revealed in a somewhat ad hoc manner in the course of oral submissions. Of particular importance, it became apparent that the ICL’s amended proposal envisaged that a carer for the older child funded through that child’s NDIS funding be in attendance at each contact event even though there was no evidence that such arrangements could be made or funded by the NDIS. I accept the submission made on behalf of the father that as various components of the ICL’s proposal emerged in the course of oral submissions without any evidence to suggest that such a proposal was practicable or affordable, there is a real risk that the ICL’s proposal may result in the children spending no time with the father on an interim basis. This is a matter to which I will return when considering other factors in relation to this application.Capacity of each parent to provide for the children’s needs, including emotional and intellectual needsMaturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the children and parents Attitude to the children and responsibilities of parenthood demonstrated by each parent

Ratio Decidendi

Legal Principle Established

The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.The primary considerations: s 60CC(2) The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26]. If orders are made as sought by the mother the children will be deprived of any relationship with their father. Although it is contended on her behalf that the father poses an unacceptable risk of harm to the children arising from sexual abuse and exposure to family violence, the submissions do not go so far as to suggest that the children do not receive a benefit from having a meaningful relationship with him. It is implicit in the orders proposed by the father and ICL that the children do receive a benefit from having a meaningful relationship with both parents, a matter with which I agree. In the circumstances under consideration, the children have already not had any contact with the father for two years and if orders were made as sought by the mother there may be a similar period where they will have no contact with the father in the future. If, as seems likely, that a court will ultimately find the children do receive a benefit from having a meaningful relationship with their father and they have continued to spend no time with him, there may then be so little foundation for those relationships that it will be extremely difficult, if not impossible, for those relationships to be rekindled. If orders are made as proposed by either the father or the ICL (and in the case of the ICL’s proposal such orders are able to be implemented, a matter to which I will return), the children’s meaningful relationships with their father will be fostered through spending time with him. Although the ICL’s proposal does not provide for the children to spend extensive time with their father, the proposal still amounts to fostering meaningful relationships as this consideration has not been interpreted to require the Court to craft orders that promote an optimal relationship between a child and parent.[8][8] Godfrey & Sanders [2007] FamCA 102 at 36. The second of the primary considerations looms large in this case. However, although it appears that the father has been violent to the mother on a number of occasions in the past, I do not consider it likely that at final hearing a trial judge will be satisfied that the need to protect the children from physical or psychological harm from being subjected to or exposed to family violence will justify an order for no time with the father. For this reason, I do not consider that the need to protect the children from being exposed or subjected to family violence requires that there be no time spent with the father on an interim basis.