Samad & Haider (No 2)
[2023] FedCFamC2F 1698
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Samad & Haider (No 2) [2023] FedCFamC2F 1698
File number(s): PAC 3296 of 2020 Judgment of: JUDGE STREET Date of judgment: 2 November 2023 Catchwords: FAMILY LAW – PARENTING – retention of child – final parenting orders already made – child returned Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 15 Date of hearing: 2 November 2023 Place: Sydney Applicant: Appeared in person with the assistance of a duty solicitor Respondent: Appeared in person ORDERS
PAC 3296 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAMAD
Applicant
AND: MS HAIDER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The matter is stood over for directions commencing at 9:30am on 15 December 2023 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.Leave is granted to the applicant father, if he wishes, to contend that there has been a material change in circumstances to file and serve an application and affidavit in support on or before 1 December 2023.
THE COURT NOTES THAT:
A.The respondent mother has been invited but not ordered to attend her GP and psychiatrist to provide a report from both in respect of her mental health to the Court and the applicant father.
B.On the next occasion, the Court will consider whether the applications by the respondent mother should be dismissed if found that there are no material changes in the circumstances.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are proceedings in respect of which this Court made final parenting orders on 16 September 2022 in respect of the child X, born 2020. The Court, in those final orders, identified a regime for incremental increase of time in order to ensure a meaningful relationship with the applicant father. Recently, because of global events, it appears that the respondent mother became distressed and, for some reason, attended the hospital, where she permitted herself to be voluntarily scheduled for a few days. It was in those circumstances that the child came to be back in the custody of the father.
As soon as the mother was discharged, she requested the return of the child, and the father refused. The mother then attended, with the benefit of Legal Aid, to file an application seeking recovery orders in respect of the child and put on an affidavit setting out in detail the circumstances relating to how she came to be at the hospital, and also identifying her discharge. There is nothing before the Court at the moment to identify that the mother has any ongoing mental health issues. The mother has filed two applications which appear to seek to re-agitate the Court’s orders in relation to time, as well as in relation to overseas travel.
There were final orders that were made on 16 September 2022 that would not be likely interfered with unless there has been a material change of circumstance. The Court is not, today, making any such determination. The matter, when it came before the Court urgently this morning, was the subject of attendance by telephone by the father, who identified that he had concerns because of the child having been given to him when the mother was going to hospital and concern as to the mother’s mental health. The reference to the mother’s mental health was an issue that was agitated earlier in the proceedings the subject of the final orders.
The Court indicated that it would give the applicant father an opportunity to return the child voluntarily and after five attempts of explaining the consequences if the applicant father failed to do so, the father agreed to return the child to the T Community Centre at 11:30am. The Court indicated that it would make an order to reflect that requirement and step being taken. The father did attend, but it appears that there were steps taken that delayed the handover until 1:20pm today. Now is not the occasion where the Court has to revisit why it did not occur at 11:30am.
The Court is however of the view that the insight displayed by the father in returning the child without the Court having to make orders in respect of a recovery order, formally, requiring the Federal Police to attend, shows a level of insight by the father, and willingness to comply with Court orders, that encourages the Court to believe that the father is capable of continuing to comply with the existing parenting orders. The Court has emphasised to the father the consequences that may flow if the father fails to comply with the orders or withdraws, or at least withholds the child again.
Those consequences extend, not just because of the breach of the parenting orders and the breach of the obligation under section 65M of the Family Law Act 1975 (Cth) (“the Act”), to enlivening the Court’s powers in respect of enforcement, but it also enlivens the Court’s powers in respect of potential contempt. A failure to comply with court orders, if a contempt is found, can result in incarceration and penalties, as well as the change of existing parenting orders. The Court, at the time of making the order this morning, took into account the principles in section 43, section 60B, section 69ZN of the Act, as well as the nature of a recovery order defined in section 67Q of the Act and the powers available in relation to section 67R of the Act, as well as the obligation in respect of the paramount consideration of the best interests of the child in section 67V of the Act.
The Court has, in that regard, taken into account the primary considerations in section 60CC of the Act and, in the present case, where there have been findings at a final hearing, there is obviously a benefit for the child in having a continuation of the existing parenting orders, provided that the parents are capable of complying with the same, and do comply with the same. The Court has also given consideration, so far as applicable, to the additional considerations which have been addressed in detail in the Court’s judgment delivered on 16 September 2022, and is of the view that the circumstances that have occurred are ones that made it property to make an order for the handing back of X to the mother.
The Court has also raised with the mother, who was supposed to see her psychiatrist today, but that has since been adjourned because of this hearing, to attend upon her GP and a psychiatrist to obtain a report as to her current mental health and her current mental health plan, and to provide the same, voluntarily, to both the Court and to the applicant father prior to the Court mentioning the matter again on 15 December 2023. The Court is taking that course not because the Court is of the view that there is, in fact, a material change of circumstance but because the Court appreciates that there was a potential cause for Mr Samad to have withheld his daughter in the circumstances of ignorance about how it is that the respondent came to attend the hospital and voluntarily permit herself to be scheduled.
There is nothing before the Court, as the Court has indicated, that conveys that the mother is the subject of any ongoing mental health issue of a concern in respect of her capacity to parent. The Court is not, at this stage, deciding whether there has been any material change of circumstance that could justify revisiting the Court’s final orders dated 16 September. The two applications filed by the mother apparently seek to reduce the time that the father might otherwise spend and seek to re-agitate the issue of overseas travel that has already been the subject of clear orders made by this Court on 16 September 2022.
Whether or not there is any proper basis for those applications to remain on foot, where the parties are continuing to comply with the parenting orders in place, is a matter that the Court will consider on 15 December 2023, having listed the matter at 9:30am for mention. The Court also provided for the applicant, if he wished to do so, the opportunity to provide or file an application in proceedings and affidavit on or before 1 December 2023 if he seeks to allege that there has been a material change in circumstances to justify revising the Court’s orders. That liberty to file such application is not one, however, that identifies the Court is, at this stage, satisfied that there has been any material change of circumstance. The Court may decide that issue on 15 December 2023, if any such application is filed, and may dismiss the applications if not satisfied that there has been a material change of circumstance.
The Court has emphasised to both parties the importance of continuing to comply with the existing court orders. While the Court appreciates that there are tragic events occurring around the world, the first priority of each parent is to their children and ensuring their ongoing capacity to discharge their parenting obligations. The Court also notes that when the matter was mentioned this morning before the father the father did seek to request an adjournment so that he could contact his lawyer.
He then identified that he, in fact, had spoken to his lawyer the day before. The Court was not satisfied, given the circumstances, that an adjournment was warranted in the interests of the administration of justice, and was satisfied that it should proceed to hear and determine the recovery order forthwith, and declined to grant the applicant father an adjournment for the purpose of further consulting with his lawyer. The Court was satisfied that the best interests of the child required an immediate return of the child, if not able to be achieved voluntarily, then pursuant to the powers of the making of a recovery order, which the Court would have made at 2:15pm today if, in fact, the child had not been returned.
The Court notes that the father also expressed some view of a lack of understanding as to what had taken place. The Court records that it is satisfied that the applicant father understood the substance of what was occurring and that his responses in relation to attempts to adjourn were meaningful and responsive, showing an understanding of the process that was taking place. The Court does not accept that the applicant father did not understand the nature of the proceedings that were before the Court. His compliance with the order, albeit late, also reinforces the Court’s view that he was able to understand sufficiently the nature of the hearing that was taking place.
The Court has conveyed to both parties the importance of continuing to comply with the existing parenting orders and is sure that the duty solicitor assisting the mother will reinforce the importance of that compliance, and Mr Samad will, no doubt, further speak to his lawyer and understand and appreciate the Court’s orders cannot be varied unilaterally, he is not in a position where he can withhold the child because of his concerns, and he must comply with those orders.
If there is a future failure to comply with the Court’s orders by the parties without there having been a further variation of them by the Court it may result in the Court taking other, much more serious and significant steps in respect of the party failing to comply with the Court’s orders. For these reasons, the Court has made the orders that were made this morning and this afternoon.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
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