Tabet & Zadeh
[2022] FedCFamC2F 1425
Federal Circuit and Family Court of Australia
(DIVISION 2)
Tabet & Zadeh [2022] FedCFamC2F 1425
File number(s): MLC 10158 of 2018 Judgment of: JUDGE BENDER Date of judgment: 10 October 2022 Catchwords: FAMILY LAW – PARENTING – the Mother’s application for parenting and property matters – where the matter has been delayed due to the Father’s ongoing criminal proceedings – the Mother submits it is not in the best interests of the child to have a relationship with the Father – the Independent Children’s Lawyer suggests it is in the best interests of the family for proceedings to be finalised – the Mother also seeks she be permitted to obtain a passport for the child without the consent of the Father – the Father opposes a passport being obtained for the child.
HELD – the Mother have sole parental responsibility – the child to live with the Mother – the Mother be authorised to obtain a passport for the child without the consent of the Father – all parenting applications be dismissed – the Father is not precluded from bringing further proceedings should there be a significant change in circumstances – property matters remain ongoing.
Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 2 Family Law Number of paragraphs: 21 Date of hearing: 10 October 2022 Place: Melbourne Solicitor for the Applicant: Mr Middlemis Solicitor for the Respondent: Mr Raniga Solicitor for the Independent Children’s Lawyer: Ms Bowman ORDERS
MLC 10158 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TABET
Applicant
AND: MR ZADEH
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
order made by:
JUDGE BENDER
DATE OF ORDER:
10 OCTOBER 2022
THE COURT ORDERS THAT:
1.The parties’ competing property applications be adjourned to the Bendigo Circuit of the Federal Circuit and Family Court of Australia on 20 February 2023 at 10:00am for final hearing with priority (with an estimated hearing time of 1 day).
2.The parties attend a Conciliation Conference with a Registrar of the Federal Circuit and Family Court at the Bendigo Registry on 30 November 2022 at 9:00am.
3.Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $410 in accordance with the Family Law (Fees) Regulation 2012 (Cth) 28 days prior to the Conciliation Conference.
4.The parties’ send to the other and the Registrar, at least seven days before the Conciliation Conference, copies of:
(a)the Assets and Liabilities Table as set out in ‘Annexure A’;
(b)valuations of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)a minute of proposed orders; and
(d)written confirmation by each party or their solicitor that:-
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
5.In the event that the matter does not settle at the Conciliation Conference and the parties have not complied with orders 4(a) to 4(d), the Registrar is directed to contact the Chambers of Judge Bender prior to the end of the Conciliation Conference in order to urgently list the matter before Judge Bender for further directions and submissions with respect to costs.
6.Unless by 22 December 2022 the parties have confirmed in writing an agreement as to the current market value of:
(a)B Street, Suburb C; and
(b)the vacant land in Country D held in the Mother’s name;
then the parties forthwith do all acts and things necessary to obtain a joint sworn valuation from an agreed appropriately qualified person, the costs of same to be borne equally by the parties and such valuation to be filed with the Court not later than 16 January 2023.
7.The Applicant file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with r.8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 4:00pm on 23 January 2023.
8.The Respondent file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with r.8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 4:00pm on 6 February 2023.
9.Except as already provided by these orders, the parties will not be permitted to rely on any trial affidavit filed after the dates provided for in these orders or file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.
10.By 4:00pm on 13 February 2023 each party file and serve an outline of case document with respect to property issues including the following:
(a)a list of the documents to be relied upon;
(b)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;
(c)the main contentions on disputes as to:
(i)what items are to be included in the pool; and
(ii)the value of each asset in the pool;
(d)a list of contributions claimed or contended for;
(e)a list of other factors relied upon (s.75(2) factors);
(f)the percentage adjustment contended for; and
(g)a statement of the precise orders sought.
11.The parties are to confer and prepare a joint chronology in Microsoft Word format setting out all facts that the parties wish the Court to take into account which is to be filed by the Applicant by 4:00pm on 13 February 2023.
12.The parties are to confer and prepare a jointly completed assets and liabilities table as set out in Annexure ‘A’ to be filed by the Applicant by 4:00pm on 13 February 2023.
13.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012 (Cth).
14.Pursuant to r.6.27(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the parties each have leave to issue up to a further 5 subpoenas for the purposes of the final hearing.
Final parenting orders
15.The Mother have sole parental responsibility for the child
XX born in 2012(“X”)(“X”).16.
XX live with the Mother.17.The Mother is authorised to apply for and receive an Australian passport for
XX born in 2012 without first obtaining the written consent of the Father.18.The Mother is permitted to take
XX from the Commonwealth of Australia without first obtaining the written consent of the Father.19.The Independent Children’s Lawyer be dismissed.
20.All applications for parenting orders be otherwise dismissed.
AND THE COURT NOTES THAT:
A.The Father is currently charged with the rape of the Mother. The Father is pleading not guilty. The trial is to be heard in late 2023/2024. In the event the Father is acquitted, it is agreed by the parties this would constitute a significant change in circumstance such that the Father can, if he chooses, institute further proceedings seeking parenting orders in respect to
XX.B.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to the filing of documents or any other procedural issues, the matter will be urgently listed before a Registrar where:
(a)the application may be struck out;
(b)the proceedings may be directed to proceed undefended;
(c)the trial date may be vacated; and
(d)orders may be made that the non-complying party pay the costs arising from their non-compliance.
C.In the event a party fails to file an outline of case document 7 days prior to the hearing date as ordered, that party’s documents will not be included in the trial book prepared by Chambers and the complying party will have leave to seek any costs arising from the failure to file.
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 Tabet & Zadeh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
introduction
This is a matter that has been before the Court in relation to both parenting and property matters since August 2018, more than four years.
Parenting application
The delay in this matter has been caused by the Father being charged with the rape of the Mother. The delay was caused initially because the police took some time to decide whether to charge the Father and thereafter because of the somewhat turgent way in which criminal matters are currently proceeding in the Victorian jurisdiction as a result of the impact of COVID-19.
The Father’s criminal matter is before the State Court on 1 November 2022 for the allocation of a final hearing date. The advice given to the Father’s solicitor is that it is unlikely the matter will be listed for a trial much before the end of 2023 and more probably in 2024.
It has been the Mother’s position in relation to parenting matters since the beginning that due to the violence in her relationship with the Father, she does not believe that it is in the best interests of the parties’ daughter X born in 2012 (“X”) to have a relationship with her father. The parties’ eldest child Y born in 2003 (“Y”) is now 18 and is no longer within the jurisdiction of the Court.
There is a Family Report in this matter dated 2 June 2020. That report suggests the Court could consider X and Y spending supervised time with the Father. However the Family Report writer stated that if the police were to charge the Father, it was unknown at that time whether charges would be laid, it would be unrealistic to expect the Mother to manage X and Y spending any time with the Father while she was in the middle of what would be extremely difficult and distressing Court proceedings in the criminal jurisdiction.
Because these proceedings have been on foot for over four years and it is in all probability another two years before the Father’s criminal matter will be finalised, the Independent Children’s Lawyer submits that the appropriate way forward in the best interests of this family, and in particular X and Y, is for the parenting proceedings to be finalised. The Independent Children’s Lawyer also argues, and the Mother’s solicitor agrees, that in the event the Father is found not guilty of the charges against him, this would constitute a sufficient change in circumstances such that fresh proceedings could be commenced by him if he so chooses.
The Mother agrees with the proposal and arguments of the Independent Children’s Lawyer and seeks final orders be made today that she have sole parental responsibility for X, that X live with her and there be no orders for X to spend time with the Father.
I am in agreement with the proposal and those submissions made on behalf of the Independent Children’s Lawyer and the Mother.
X has not spent time with her father since 2016 and at this time has no relationship with him. The Mother is her primary carer and X is wholly dependent upon her mother for her care. The Mother, on her evidence is the victim of very serious abuse at the hands of the Father. She is in the next two years facing the trauma of a defended criminal trial in which she will be the main prosecution witness. To try and manage that pressure and continuing proceedings in this Court will be more than should reasonably be asked of her. It is therefore in X’s best interests at this time that her primary carer should have some of that burden removed.
It is therefore not in the best interests of X to have the Father’s parenting application hanging over her head for another two years.
In circumstances where it is agreed by all parties that the Father’s current application for time with X cannot be heard until his criminal matters are determined, it is clear X’s best interests will be met if the Father’s current application is finalised on the basis that the orders made reflect the reality of X’s life for the last six years.
All parties agree that in the event the Father is found not guilty of the charges he faces, this would constitute a significant change in circumstances such that it would preclude an argument under “the rule” in Rice & Asplund (1979) FLC 90-725 if he were to make an application for parenting orders at that time.
passport issue
There is one remaining parenting issue. The Mother seeks an order that she be permitted to obtain a passport for X without the consent of the Father.
Both parties are from Country D.
The Mother’s mother has recently passed and she wants to travel back to Country D with X to properly mourn her mother and to see and support her father and family.
The Father is opposed to the Mother obtaining a passport for X. He initially signed a consent to that passport and then changed his mind. He did so, not on the basis that the Mother was proposing to go to Country D which is a non-Hague Convention country, but on the basis that he had heard a rumour from “somebody” that the Mother was contemplating moving to the United States of America with X.
The Mother and her solicitor are adamant that the Mother has no intention of leaving Australia permanently. The Mother is now an Australian citizen. X was born in Australia. The Mother owns her own home in Australia and she has secure employment in Australia. It is clear that the Mother now considers herself settled and a citizen of this country and has no desire to live anywhere else.
I am of the view that it is appropriate for the Mother and X, together with Y who is planning to travel to Country D, to be able to travel to Country D to mourn the passing of their mother and grandmother and see the extended maternal family.
This view is supported by the Independent Children’s Lawyer.
CONCLUSION
In those circumstances, I intend to make orders allowing the Mother to obtain a passport without the consent of the Father.
I will also make an order for the Mother to have sole parental responsibility for X and for X to live with her.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 21 October 2022
0
0
0