Umarov & Faerber

Case [2024] FedCFamC1F 898

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Umarov & Faerber [2024] FedCFamC1F 898

File number: BRC 14597 of 2021
Judgment of: CAREW J
Date of judgment: 23 December 2024
Catchwords: FAMILY LAW – CHILDREN – Whether the father poses an unacceptable risk to the children –Where there is a history of the father perpetrating family violence against the mother, including coercive and controlling behaviour and a conviction for breaching a protection order – Where the father has a criminal history, including child sex offences and breaches of his consequent reporting obligations –Where the task of assessing the risk posed by the father is complicated by the father’s Autism Spectrum Disorder and personality vulnerabilities – Where the father disregards court orders and externalises responsibility for his actions –– Where the father is to spend no time nor communicate with the children save for sending a card and a gift on special occasions.    
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 102NA

United Nations Convention on the Rights of the Child  
Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Eastley & Eastley (2022) FLC 94-094

Isles and Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

Number of paragraphs: 149
Date of hearing: 12 – 13 December 2024
Place: Brisbane
The Applicant: Litigant in person
Counsel for the Respondent: Mr Duplock
Solicitor for the Respondent: Aegis Law Group
Counsel for the Independent Children's Lawyer: Mr George
Solicitor for the Independent Children's Lawyer: Ms Jennifer Boulton

ORDER

BRC 14597 of 2021

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

MR UMAROV

Applicant
AND:

MS FAERBER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

23 DECEMBER 2024

THE COURT ORDERS THAT:

1.The mother have sole parental responsibility and decision making authority for the major long-term decisions in relation to the children, X born 2016 and Y born 2018.

2.The children live with the mother.

3.Subject to the provisions of paragraph 4 of this Order, the father spend no time nor communicate with the children.

4.The father be at liberty to send a card and gift to the children on special occasions, being the children’s respective birthdays, Easter, and Christmas, to an address or post office box nominated by the mother.

5.The mother keep the father informed of any changes to the postal address to enable the father to send cards and gifts in accordance with paragraph 4 of this Order.

6.The mother forthwith engage a psychologist for the children to explain the Order to the children and to address any issues arising out of their lack of a relationship with their father.

7.Leave be granted to the mother to provide a copy of the Family Report dated 18 November 2024 and…

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AGLC
Umarov & Faerber [2024] FedCFamC1F 898
Case
[2024] FedCFamC1F 898
Decision Date

CaseChat Overview and Summary

The matter before the court involved the parties, Umarov and Faerber, who were parents to two children, X and Y. The dispute centred on the allocation of parental responsibility and the extent of the father's contact with the children. The Independent Children's Lawyer (ICL) recommended that the mother have sole parental decision-making responsibility for major long-term issues and that the father have no contact with the children except for sending cards and gifts on special occasions. This recommendation was due to a history of family violence perpetrated by the father against the mother, a criminal history that included child sex offences, and the father's disregard for court orders. The father also has Autism Spectrum Disorder and personality vulnerabilities, which complicated the assessment of the risk he posed to the children.

The court was required to decide whether the father posed an unacceptable risk to the children, given his history of violence and criminal conduct. The court also had to consider the father's Autism Spectrum Disorder and personality vulnerabilities, which complicated the assessment of risk. Furthermore, the court needed to decide on the appropriate terms of contact between the father and the children, taking into account the father's disregard for court orders and externalisation of responsibility for his actions.

The court found that the father posed an unacceptable risk to the children due to his history of violence and criminal conduct, including child sex offences. The court also considered the father's Autism Spectrum Disorder and personality vulnerabilities, which made it difficult to accurately assess the risk he posed. However, the court concluded that these factors did not outweigh the risk posed by the father's past conduct. The court therefore ordered that the father have no contact with the children except for sending cards and gifts on special occasions, and that the mother have sole parental responsibility and decision-making authority for the children. The court also issued an injunction restraining the father from attending certain locations and contacting the mother and children except as permitted by the court order.

The final orders of the court included that the mother have sole parental responsibility and decision-making authority for the major long-term decisions in relation to the children, that the children live with the mother, and that the father spend no time nor communicate with the children except for sending cards and gifts on special occasions. The court also granted leave to the mother to provide a copy of the Family Report and Reasons for Judgment to the children's psychologist, and issued an injunction restraining the father from attending certain locations and contacting the mother and children except as permitted by the court order.

Orders

Orders of the court

1. The mother have sole parental responsibility and decision making authority for the major long-term decisions in relation to the children, X born 2016 and Y born 2018.

2. The children live with the mother.

3. Subject to the provisions of paragraph 4 of this Order, the father spend no time nor communicate with the children.

4. The father be at liberty to send a card and gift to the children on special occasions, being the children’s respective birthdays, Easter, and Christmas, to an address or post office box nominated by the mother.

5. The mother keep the father informed of any changes to the postal address to enable the father to send cards and gifts in accordance with paragraph 4 of this Order.

6. The mother forthwith engage a psychologist for the children to explain the Order to the children and to address any issues arising out of their lack of a relationship with their father.

7. Leave be granted to the mother to provide a copy of the Family Report dated 18 November 2024 and the Reasons for Judgment dated 23 December 2024 to the children’s psychologist.

8. The father be restrained and an injunction hereby issues restraining him from:

(a) Attending within 100 metres of the children’s schools;

(b) Attending within 100 metres of the mother and children;

(c) Attending within 100 metres of the mother’s workplace or residence; and

(d) Contacting the mother and children through any means other than in accordance with a court order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The ICL recommended that the mother have sole parental decision making responsibility for major long-term issues and that the father spend no time nor communicate with the children other than providing a card and gift on special occasions. The precise terms of the order recommended by the ICL are set out in exhibit 4. It was apparent from the ICL’s case outline filed 9 December 2024 that the ICL would recommend that the father’s contact with the children be limited to providing a card and gift to the children on special occasions. BACKGROUND The father was born in Country F and relocated with his family to New Zealand in his mid‑teens. The father relocated to Australia in his early twenties. The father is 44 years of age and self-employed as an allied health professional working between 15 to 20 hours per week. The father lives close to the mother’s residence although he declined to provide his address in open Court. The father’s address is held in a sealed envelope not to be opened without an order of the Court. The father's residential address is not as stated in his solicitor’s Notice of Ceasing to Act filed on 24 November 2024. The mother did not press for the disclosure of the father’s address. The mother was born in Country C and relocated to Australia to marry the father. The mother is 33 years of age and variously employed in hospitality, service and in an unknown capacity in allied health. The father does not pay child support. The mother lives in a five bedroom rented house with Ms B. Ms B raised the mother in Country C as the mother’s mother had a child with special needs and required assistance. However, the mother remains very close to her parents and siblings in Country C with whom she communicates regularly. Ms B is widowed and a retired educator in Country C. She is 69 years of age. The mother and the two children share a large bedroom and Ms B has a separate bedroom. The remaining three bedrooms are rented out by the mother to three female students. This is the house in which the mother and father and children previously lived in together. Ms B also lived in this house for part of the parents’ marriage. Sadly, Ms B’s husband died in 2020. The status of the mother’s entitlement to remain in Australia permanently is not entirely clear. The mother’s current visa apparently entitles her to stay until 2028. The parents initially met online in 2015 through some of the mother’s extended family who knew the father in Australia. The father and mother met several months later when the father travelled to Country C. They quickly became engaged to be married and travelled to New Zealand to meet the father’s family. The mother became pregnant in New Zealand. The parents commenced cohabitation in 2016 and married in Australia in 2017. The mother had to return to Country C as she was at that time only on a tourist visa. After obtaining a New Zealand citizen partner visa, the mother returned to Australia. The parents have two children, being X born 2016 and Y born 2018.

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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