FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shalhoub & Morcos [2023] FedCFamC1F 419
File number(s): PAC 591 of 2019 Judgment of: HANNAM J Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Where the Department of Communities & Justice have intervened in the proceedings – Where the mother contends that the father has perpetrated family violence – Where the mother contends that the father has sexually and physically abused the child – Where the child was removed from the mother’s care by the Department of Communities & Justice – Where each of the other parties contend that the mother poses an unacceptable risk of harm to the child on the basis of physical and psychological abuse – Where there are serious concerns for the mother’s mental health – Orders made as sought by the Secretary – Where the child is to live with the father – Where the father is to have sole parental responsibility for the child except in relation to his time and communication with the mother – Where the Minister for Families and Communities is to have sole parental responsibility in relation to the child’s time and communication with the mother – Where after a certain period the father is to share parental responsibility with the Minister in relation to the child’s time and communication with the mother before – Where after a further period the father is to have sole parental responsibility in relation to the child’s time and communication with the mother. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65D. Cases cited: Amador & Amador [2021] FamCAFC 66
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Oberlin & Infeld [2021] FamCAFC 66
Division: Division 1 First Instance Number of paragraphs: 509 Date of last submissions: 19 December 2022 Date of hearing: 14 – 18 March 2022; 27 – 28 June 2022; 8-9 September 2022; 23 September 2022; 19 December 2022 Place: Parramatta Counsel for the Applicant: Mr Mando and subsequently Litigant in Person (from 28 June 2022) Solicitor for the Applicant: Safi Legal (until 28 June 2022) Counsel for the Respondent: Mr Sperling Solicitor for the Respondent: Metta Legal Counsel for the Intervener: Mr Havenstein Solicitor for the Intervener: Crown Solicitors Office Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Legal Aid Nsw Campbelltown Family Law ORDERS
PAC 591 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHALHOUB
Applicant
AND: MR MORCOS
Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
24 may 2023
THE COURT ORDERS THAT:
1.All previous orders relating to the child X born … 2018 (“the child”) be discharged.
Parental Responsibility
2.Subject to Orders 3 and 4 below,…
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CaseChat Overview and Summary
In the Family Court of Australia, the case of Shalhoub & Morcos involves a dispute between the parents of a child regarding parental responsibility and the best interests of the child. The parents, both originally from a Middle Eastern country and married in 2016, have experienced a highly contentious relationship marked by allegations of physical, sexual, and psychological abuse from both parties. The mother has sought sole parental responsibility for major decisions, while the father has contested these claims and sought joint parental responsibility. The court was required to determine whether it was appropriate to grant the orders sought by the parents, the Department, and the Independent Children's Lawyer, considering the best interests of the child as the paramount consideration.
The legal issues before the court included the application of the presumption of equal shared parental responsibility under section 61DA of the Family Law Act 1975 (Cth), and whether there were reasonable grounds to believe that either parent had engaged in abuse or family violence. The court also had to consider the capacity of the parents to make joint decisions for the child's long-term care and welfare, as well as the impact of the extended families on the parents' relationship. The court needed to weigh the evidence of abuse and the state of the parents' relationship against the statutory presumption of equal shared parental responsibility.
The court found that the mother had engaged in abuse of the child, and therefore the presumption of equal shared parental responsibility did not apply. The court also concluded that the parents' relationship had never developed into a functional, cooperative, mutually trusting one, and that both extended families had contributed to the ongoing animosity between the parties. The court determined that it was not in the child's best interests for the father to hold parental responsibility for determining all matters related to the child's time with and communication with the mother, even if he was to be allocated sole parental responsibility for all other matters. The court ultimately decided to allocate sole parental responsibility to the father for all matters except those related to the child's time with and communication with the mother.
The final orders of the court allocated sole parental responsibility to the father for all matters except those related to the child's time with and communication with the mother. The court also ordered that the mother and father were to exchange contact information with the child, and that the father was to provide the mother with all information regarding the child's care, including medical, dental, and school information. The court further ordered that the mother and father were to consult each other in relation to all matters of significance to the child, and that they were to endeavour to reach agreement on all decisions relating to the child.
The legal issues before the court included the application of the presumption of equal shared parental responsibility under section 61DA of the Family Law Act 1975 (Cth), and whether there were reasonable grounds to believe that either parent had engaged in abuse or family violence. The court also had to consider the capacity of the parents to make joint decisions for the child's long-term care and welfare, as well as the impact of the extended families on the parents' relationship. The court needed to weigh the evidence of abuse and the state of the parents' relationship against the statutory presumption of equal shared parental responsibility.
The court found that the mother had engaged in abuse of the child, and therefore the presumption of equal shared parental responsibility did not apply. The court also concluded that the parents' relationship had never developed into a functional, cooperative, mutually trusting one, and that both extended families had contributed to the ongoing animosity between the parties. The court determined that it was not in the child's best interests for the father to hold parental responsibility for determining all matters related to the child's time with and communication with the mother, even if he was to be allocated sole parental responsibility for all other matters. The court ultimately decided to allocate sole parental responsibility to the father for all matters except those related to the child's time with and communication with the mother.
The final orders of the court allocated sole parental responsibility to the father for all matters except those related to the child's time with and communication with the mother. The court also ordered that the mother and father were to exchange contact information with the child, and that the father was to provide the mother with all information regarding the child's care, including medical, dental, and school information. The court further ordered that the mother and father were to consult each other in relation to all matters of significance to the child, and that they were to endeavour to reach agreement on all decisions relating to the child.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is whether it is proper for orders to be made as sought by the mother, father, the Department or the ICL having regard to the best interests of the child as the paramount consideration.BACKGROUNDEvents prior to the commencement of the proceedings The parents, now aged in their thirties, were both born in a Middle Eastern country and moved to Australia with their respective families when they were children. The mother struggled significantly as a child and adolescent including being bullied and physically assaulted at school and at times was prescribed anti-depressants. During childhood the father was diagnosed with a condition (“the father’s medical condition”) that affects the arteries in his brain. He deposes that this condition impacts his learning ability in relation to technical, complicated or new information, but contends that it has no impact on his day to day living or on his parenting capacity. The mother contends that this medical condition significantly impacts on the father’s physical and mental health and is a matter to which I will return. In around 2015 the parents met at the church where they each attended and in early 2016 were married. There is significant dispute between the parents as to the nature of their relationship after they married. It is the father’s case that since the time he first met the mother he has seen her struggle with poor mental health and throughout the course of their marriage her mental health deteriorated significantly. Although the mother’s mental health is a matter which will be discussed in greater detail in these Reasons, it suffices to say at this stage that the father observed the mother to experience very strong mood swings, changing from a high and elated mood to severe depressive episodes in which she harmed herself by hitting and cutting herself and at times expressed suicidal ideation. It is the mother’s case that from the time the parents married, the father has been violent towards her including perpetrating physical and sexual assaults and subjecting her to serious psychological abuse. The mother further deposes that the father was encouraged to act in this manner by the paternal grandparents whom she claims were also abusive towards her. This abuse is denied by the father and will be considered later in these Reasons. In 2016 the maternal grandparents separated. The father deposes that at this time the mother became emotionally heightened, crying constantly and showing aggression towards the maternal grandfather. According to the father, during this time the mother attended one appointment with a psychologist but was dissuaded by the maternal grandmother from attending any further appointments. The mother’s relationship with the maternal grandmother is a matter in dispute in these proceedings as it is the mother’s case that the father forced her to cease contact with the maternal grandmother and other family members. This is denied by the father who contends that throughout the parents’ relationship he observed the maternal grandmother to verbally and emotionally abuse the mother, causing the mother severe emotional distress. According to the father, he encouraged the mother only to create boundaries with the maternal grandmother to assist her emotional wellbeing.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
If the current intention of the Secretary is recorded in Final Orders as a Notation, a party, and in particular the mother, may interpret such a Notation as indistinguishable from an Order. Given that Notations are not orders and are effectively meaningless and as there is a real possibility that the Secretary’s intention may change over time, recording such Notations in orders is in my view unnecessary and potentially unhelpful. For this reason I do not propose to include such Notations in the Final Orders.CONCLUSIONParental responsibility Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. In Goode & Goode[27] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of the child must be made jointly, unless the Court provides otherwise. [27] (2006) FLC 93-286. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). In circumstances where I have found that the mother engaged in abuse of the child, the presumption of equal shared parental responsibility does not apply. In any event, the parents’ relationship is described by the expert as one which “never developed into a functional, cooperative, mutually trusting relationship” and both extended families have been clearly involved in the ongoing animosity between the parties which has contributed to the parental ill feeling. The mother’s allegations against the father have escalated in time and there is no evidence at all that the parties have the capacity to make any major decisions for the long term care and welfare of the child jointly. The state of the parents’ poor communication and absence of any capacity for joint decision making is so extreme in this case that for the reasons previously given it is not in the child’s best interests for the father to hold parental responsibility for determining all matters related to the child’s time with and communication with the mother even if he is to be allocated sole parental responsibility for all other matters.
Ratio Decidendi
Legal Principle Established
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