Wasem & Nasser (No 6)
[2024] FedCFamC2F 1462
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wasem & Nasser (No 6) [2024] FedCFamC2F 1462
File number(s): PAC 6078 of 2020 Judgment of: JUDGE STREET Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – PARENTING – variation of parenting orders – father in prison - potential for adverse emotional and psychological impact from excluding the father from the children’s lives Legislation: Family Law Act 1975 (Cth) Cases cited: Kapoor & Kapoor [2024] FedCFamC2F 605 Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 18 October 2024 Place: Sydney Solicitor for the Applicant: Ms K Rutkowska of Ark Law Lawyers Respondent: Self-represented Solicitor for the Independent Children’s Lawyers: Ms E Mason of Mason Mia & Associates – Solicitor & Advocates ORDERS
PAC 6078 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WASEM
Applicant
AND: MS NASSER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
Variation of parenting orders
1.Order 3 made on 30 November 2022 is varied to read as follows “The children may spend time with the father in accordance with the determination of the mother”.
2.Order 9 made on 30 November 2022 is varied to read as follows “The children may communicate with the father, on such basis, the father is able to communicate with them from custody.”
3.Order 3 made on 30 November 2022 is vacated.
4.Order 4 made on 30 November 2022 is vacated.
5.Order 5 made on 30 November 2022 is vacated.
6.Order 6 made on 30 November 2022 is vacated.
7.Order 7 made on 30 November 2022 is vacated.
8.Order 8 made on 30 November 2022 is vacated.
9.Order 12 made on 30 November 2022 is vacated.
10.Order 17 made on 30 November 2022 is vacated.
11.Order 19 made on 30 November 2022 is vacated.
12.Order 20 made on 30 November 2022 is vacated.
Procedural orders
13.Order 1 made on 29 August 2024, fixing for directions on 1 November 2024, is vacated.
14.The matter stood over for directions commencing at 9:30am on 20 October 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
15.Liberty is granted to the parties, including the ICL, to apply on three (3) days notice.
THE COURT NOTES THAT:
A.Ms Rutkowska who has appeared through Legal Aid representation pursuant to section 102NA of the Family Law Act 1975 (Cth) will, in so far as she is able, communicate to the ICL and to the respondent mother in writing within 28 days, such information as she is able to obtain in respect of the nature of each offence, the subject of a conviction, the sentence imposed, the parole period, and whether an appeal is being pursued, and or any application for bail being made.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings have a most unfortunate history and were commenced on 22 December 2020. They now only constitute parenting proceedings that have been fixed for directions on 1 November 2024, with the intention of having the parties potentially achieve a consensual outcome in respect of the final parenting orders with the assistance of legal aid through the benefit of the input by the ICL. An order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) has been made on 14 September 2023 but no final hearing date has been fixed for the parenting matter.
The Court has been informed that in late 2024 the applicant father (“the father”) has been sentenced to a term of imprisonment with a non-parole period for offences that appear to relate to driving. So far as the Court is aware, none of the driving offences involved the children being in the vehicle.
There were interim parenting orders that were made on the 30 November 2022. Those parenting orders included the father to undertake steps in relation to drug testing, if required by the ICL, and other orders concerning educational steps and mental health steps to be undertaken by the father.
The ICL properly raised that it may be a course open to the father that he might contemplate to file a notice of discontinuance so that the respondent mother (“the mother”) is not further vexed in these proceedings. It is apparent prior to his sentencing that he was spending some time with the children, which was not supervised, other than the older child, who was seeing the father for short periods in accordance with his views, but not staying overnight.
It is apparent that the mother has an understanding as to the importance of a meaningful relationship between the father and the children, notwithstanding that the father could not be described in any way as an angel. He is nonetheless the father of the children, and the children may still have a real benefit of having him involved in their lives. The potential for adverse emotional and psychological impact from excluding him from their lives, and a sense of abandonment that they may then feel are some of the issues that the children would face if the father was not able to communicate with them.
The Court raised with the mother that it would be a matter for her, when she thought it would be appropriate, to take some or other of the children to see the father, depending on where he may be, and the Court is satisfied that the mother will permit the father to communicate with the children when he seeks to contact them from custody.
The Court has reconsidered the parenting orders that were made on the 30 November 2022 and has taken into account the new statutory regime under Pt VII of the Act, the paramount concern as to the best interest of the children as now identified in s 60CC of the Act, and the principles set out in Kapoor & Kapoor [2024] FedCFamC2F 605 at [6] – [15]. The Court does not propose on this occasion to go through each of those factors given the long history of the matter. The Court is satisfied that it is inappropriate to leave in place orders that require the children to spend time with the father which cannot occur while the father is in custody.
The Court is also of the view that it is not appropriate to leave in place orders that require the father to take certain steps that are not capable of being undertaken whilst he is in custody. However, the Court is of the view that the capacity of the ICL to seek a hair follicle test and appropriate testing remains an important regime that will need to be reactivated if the father seeks to further engage in these parenting proceedings. The Court also raised standing the proceedings over for 12 months with liberty to apply.
Ms Rutkowska, on behalf of the father, identified that she had had virtually no opportunity to get proper instructions from her client. However, in the circumstances of the present case, it is apparent that the liberty to apply adequately protects the interests of the father standing the matter over to 25 October 2025. Further, the vacation of the parenting orders in respect of time for the father to spend time with children are in the context of trying to ensure that the orders are not disregarded and flouted because they cannot be complied with by the father. The Court is satisfied that is appropriate to vary the orders so that there are no issues of non-compliance of the interim parenting orders by the father.
Order 17 made on 30 November 2022 provided a restraint in relation to schooling and the location of the mother. The Court is satisfied that it is not appropriate for that restraint to remain in place in all the circumstances. The Court was informed by the mother that due to financial constraints, her and the children may well have to move suburbs and one or other of the children may be changing schools. It is in the best interests of the children to permit the parent who has the long-term parental responsibility for the children to make such decisions as she sees fit. Accordingly, the Court has vacated that earlier restraint.
The Court would hope that if the matter is one where the father wishes to continue the pursuit of these parenting proceedings, he will be able to be the subject of the intended mediation that was to be organised by the ICL, once the ICL is satisfied that there are no other issues that would require investigation. One of the problems for the father going into custody is that it requires a reset in relation to whether he has a drug problem when he comes out of jail and/or an alcohol problem, and also his mental health, all of which are issues that the Court will have to deal with in the context of further parenting orders if there continues to be a dispute. The Court makes these observations, not because it has any fixed or final view, but in order to identify reasons why it may be that the father wishes to discontinue these proceedings and seek a cooperative approach in the future with the benefit of the insight of the mother as to what is in the best interests of the children in terms of their continued relationship with the father, particularly given the spread of ages of the five children.
The father has the benefit of representation at the moment, albeit under a s 102NA Legal Aid grant, of an extremely experienced family practitioner who will be well able to give him proper advice as to the course that should be taken. The Court greatly appreciates the assistance that has been provided by the ICL.
It is for reasons that the Court varied the parenting orders made on 30 November 2022 and vacated the directions hearing on 1 November 2024.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 18 November 2024
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