Zabawa & Ragheb (No 2)
[2022] FedCFamC1F 1039
Federal Circuit and Family Court of Australia
(DIVISION 1)
Zabawa & Ragheb (No 2) [2022] FedCFamC1F 1039
File number(s): SYC 7172 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – CHILDREN – Best interests of the child – Where the parties reached a final consent position at final hearing save for three remaining issues – Where the children have not spent significant time with the mother since August 2020 – Where the mother seeks an additional order for the children to spend time with the mother on the children’s birthdays, Mother’s Day and to have telephone communication each week – Father opposes the application for time with the mother based on his religious faith – Where there is an absence of expert evidence before the Court –Where the father opposes the application for communication due to a history of conflict between the parties – Proposed orders provide for the children to have a meaningful relationship with the mother – Orders made in accordance with the minute of order proposed by the mother and supported by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65DAA
United Nations Convention on the Rights of the Child art 12
Cases cited: Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Zabawa & Ragheb [2020] FCCA 2504
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 5–7 September, 8–10 November, 19 December 2022 Place: Sydney Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Mr Strik Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 7172 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZABAWA
Applicant
AND: MR RAGHEB
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
19 DECEMBER 2022
BY CONSENT, THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children, X (DOB 2012) and Y (DOB 2013) (“the children”), including for all major decisions including in relation to health, education, where the children reside, and religion. Should the parents be unable to come to an agreement in relation to major decisions, the following orders will apply:
2.1In the case of a medical emergency, should the parents be unable to come to an agreement within 24 hours, the Father shall make the decision and inform the Mother of his decision;
2.2Except in relation to a medical emergency and any proposed change of residence for the children, should the parents be unable to come to an agreement in relation to any major decisions within twenty-one days, thereafter the Father shall make the final decision and inform the Mother of that decision;
3.The children shall live with the Father.
4.The children shall spend time with the Mother as agreed in writing between the parents, and failing agreement, as follows:
4.1Commencing at the start of the Term 1 school year in 2023, each alternate week from Friday at 3:00pm or after school until Monday at 9:00am or at the commencement of school, unless Monday is a public holiday in which case until Tuesday at 9:00am or at the commencement of school.
School Holidays:
5.Commencing in the 2023 school year, the children shall spend time with the Mother as agreed between the parents and failing agreement as follows:
5.1the first half of Terms 1, 2, 3, and 4 school holidays with the Mother, and the second half of Terms 1, 2, 3 and 4 school holidays with the Father.
5.2For the Term 4 2022 school holidays the children shall spend time with the Mother from 3.00pm on Friday 23 December 2022 until 5.00pm on Monday 26 December 2022 and from 3.00pm on Friday 30 December 2022 until 5.00pm on 2 January 2023.
Special Days:
Religious Holidays:
6.Notwithstanding any other order, subject to agreement between the parents in writing and failing agreement the children shall spend time with the Mother:
6.1In each even numbered year:
6.1.1On the first occasion of S Festival (known as S1 Festival) from 8.00 pm (or 3.00 pm if a school day) the day before the first day of that occasion of S Festival until 8.00 pm on the first day of S Festival; and
6.1.2On the second occasion of S Festival (known as S2 Festival) from 8.00 pm (or 3.00 pm if a school day) on the day before the first day of that occasion of S Festival until 8.00 pm on that occasion of S Festival.
6.2In each odd numbered year:
6.2.1On the first occasion of S Festival (known as S1 Festival) from 8.00 pm on the first day of that occasion of S Festival until 8:00 pm on the second day of that occasion of S Festival, and
6.2.2On the second occasion of S Festival (known as S2 Festival) from 8.00 pm on the first day of that occasion of S Festival until 8.00 pm on the second day of S Festival;
6.3With the first day of the S Festival occasion to coincide with the first day of the S Festival occasion celebrated in Australia
Changeovers:
7.Unless otherwise agreed between the parents in writing, changeovers shall occur between the parents or their nominated agents at school or at Suburb P McDonald’s.
Undertakings:
8.That within 48 hours the stepfather, Mr Q, shall provide the court with an undertaking that he shall not consume alcohol or illicit substances when the children are in his care and for twelve hours prior to the children coming into his care.
Restraints:
9.The parents shall be restrained from allowing the children to witness any domestic violence and shall take all reasonable measures to remove the children from any family violence as soon as is reasonably practical.
10.The parents are restrained by injunction from denigrating the other parent or members of the other parent’s family, and shall take all reasonable measures to ensure that the children are not present when other persons are denigrating the other parent or parent’s family.
11.The parents are restrained by injunction from posting on social media about the other parent or their family.
12.That the Mother shall not approach the Father, the Father’s Wife or the Paternal Grandmother in public places save for the purpose of changeovers.
Communications:
13.The parents shall communicate with each other only in relation to the children using the parenting app AppClose and shall within 24 hours ensure that they have access to this communication means.
14.The Parents shall inform each other of any medical practitioners, therapists or other allied health professional that the children are attending upon and shall inform each other of any recommended treatment including prescription drugs the children are required to take.
15.Both parents are at liberty to communicate with the children’s teachers, school counsellors and medical professionals in relation to the care of the children.
Schooling:
16.Both parents shall ensure that the children have a complete school uniform at their residence.
17.The Father shall ensure that the Mother’s details are included on the children’s school enrolment forms.
18.The Father shall provide the children’s schools with a copy of these Orders.
19.Both parents are at liberty to attend school events and extracurricular activities that the children engage in to which parents would normally be invited, and the Mother shall advise the Father of her intention to attend any such event by contacting him 24 hours in advance on the AppClose app.
20.Save for the school events and extracurricular activities pursuant to Order 23, the Mother shall be restrained from attending the children’s schools in the Father’s time.
Parenting Education:
21.Within 28 days, the parents shall take all reasonable steps to enrol in and then will complete two parenting education courses from the following and shall provide a certificate of completion to the other parent within seven days of completion:
21.1One, Two, Three Magic Emotion Coaching;
21.2Triple P Parenting;
21.3Circle of Security.
Family Counselling:
22.Within 28 days, the Father shall attend upon his general practitioner to discuss obtaining a mental health care plan for the children to engage in family counselling and ensure that the children attend such family counselling as is recommended by the referred treating practitioner.
23.For the purposes of family counselling and the mental health care plan, the Father is at liberty to provide a copy of the Family Report to the medical practitioners.
24.For the purposes of family counselling, the Father shall pay for his sessions and the children’s sessions, and the Mother shall pay for her sessions.
General Orders:
25.That the Independent Children’s Lawyer shall be discharged.
THE COURT FURTHER ORDERS THAT:
Children’s Birthdays:
26.The children shall spend 3 hours on the birthday of either of the children with the parent with whom they are not then spending overnight time unless a child’s birthday is a changeover day, and, if no other period be able to be agreed between the parties, the 3 hours be from 3.00pm until 6.00pm if on a school day or from 1:00pm to 4:00pm if on a non-school day.
Mother’s Day:
27.If the children are not already spending time with the mother on Mother’s Day, they spend time with her on that day from 9:00am until 5:00pm.
28.The non-live with parent shall be at liberty to phone the children each Wednesday between 6:00pm and 6:30pm, and the live-with parent shall ensure that the children have access to a phone and privacy for the duration of the phone call and save for this weekly time the non-live with parent shall be restrained from initiating contacting with the children.
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 the pseudonym Zabawa & Ragheb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
Earlier today, the parties resolved their dispute in respect to parenting arrangements for their children, X, aged 11 and Y, aged 9 (“the children”) other than in respect to three issues.
Those issues are:
·Whether the children should spend time with each parent on their respective birthdays;
·Whether the children should spend time with their mother on Mother's Day if they are not otherwise in her care; and
·Whether provision should be made for the mother to contact the children by electronic means, when they are not in her care, once per week between the hours of 6.00 pm and 6.30 pm.
The background to this matter is set out in a judgment and orders of Judge B Smith, as he was then known, which was delivered on 18 August 2020.[1] By way of summary, those orders provided for the children to live with the father and spend time with the mother on a supervised basis.
[1] Zabawa & Ragheb [2020] FCCA 2504.
Between the date of those orders and the last day of the substantive hearing in this matter, the children spent limited time with the mother, with that time being supervised. The mother met the costs of that supervision.
Significantly and to the great credit of the parties and the Independent Children’s Lawyer (“the ICL”), at the conclusion of evidence on 10 November 2022, the parties agreed to an increase in the amount of time that the children spend with the mother, now being on a weekly basis on Saturdays between 9.00 am and 1.00 pm. That time was to be supervised by the maternal grandmother.
Again to their credit, the parties and the ICL have been engaged in further discussions between the conclusion of the presentation of evidence and today, at which time the parties were to present their respective submissions. Arising from those discussions, the parties were able to reach agreement in respect to ongoing parenting arrangements other than the three matters to which I have earlier referred.
Essentially, those arrangements provide for the children to spend time with the mother on an increasing basis and for that time to be unsupervised. The orders also provided for a number of ancillary matters.
The background to the limited amount of time that the children have been spending with their mother is significant because it indicates that, since August 2020, the children who are the subject of these proceedings have had limited time with their mother and that time has been constrained by the fact that it has been supervised.
Again to their credit, the parties did not allow the disagreement in respect to the three remaining contentious issues to stand in the way of the resolution of the most substantive issues, including the ongoing spend time arrangements.
In determining those issues which remain outstanding, I am required to apply the legislative criteria set out in Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Relevantly, in the context of this matter, an important object of Pt VII is set out in s 60B(1)(a) of the Act, namely, to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
(Emphasis added)
Section 60B(2) sets out the principles underlying the objects of the Act and relevantly includes that, except when it would be contrary to the children's best interests:
(a) children have the right to know and be cared for by both their parents …
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
(Emphasis added)
That provision also notes the requirement for the Court to consider orders that would enhance the children’s ability to communicate with other significant persons in their lives, and the Court includes in that category, in the circumstances of this case, the children’s half-siblings who live in the parties' respective households.
Having regard to those objects, in Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (Emphasis added).
Section 60B(4) of the Act provides that an additional object of Pt VII is to give effect to the United Nations Convention on the Rights of the Child ("the Convention").
Relevantly, art 12 of the Convention provides that:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
That objective is also reflected in s 60CC(3)(a) of the Act as follows:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The right of a child of sufficient maturity to have due weight given to their views is significant in the context of these proceedings where the children and, in particular X, have expressed a strong desire to spend more time with their mother.
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must have regard to the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
In undertaking that important task, s 60CC of the Act sets out the list of matters that the Court “must consider” in determining what is in the children's best interests. Specifically, s 60CC(1) provides that “…in determining what is in the child's best interests the Court must consider the matters set out in subsections (2) & (3).” This is a mandatory obligation on a judge.
Section 60CC(2) of the Act sets out the primary considerations as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) of the Act sets out additional considerations which can conveniently be grouped as follows:
·Issues relating to the children - their views, level of maturity, culture and relationships: s 60CC(3)(a), (b), (g) and (h).
·Issues relating to the parents - decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: s 60CC(3)(c), (ca), (f) and (i).
·Issues of family violence: s 60CC(3)(j) and (k).
·Effect of change: s 60CC(3)(d).
·Practical difficulty of implementation: s 60CC(3)(e).
·Avoiding further proceedings: s 60CC(3)(l).
·Other relevant matters: s 60CC(3)(m).
Whilst I am required to holistically evaluate all of the considerations set out in s 60CC, clearly, in the context of the limited issues that remain in dispute between the parties, it is appropriate that I focus upon those which have influenced my determination.
Most relevantly, I have had regard to the primary consideration of the desirability of the children having a meaningful relationship with both parents. In that context, the limited amount of time that the children have spent with their mother since August 2020 has been an impediment to that occurring.
Clearly, there is much ground to be made up in order for the children's relationship with their mother to blossom and to become one that can truly be said to be of value and meaningful to the children.
Insofar as each of the proposed orders 7 and 8 provide for the children to spend additional time with the mother, it is consistent with enhancing opportunities for the children to develop a meaningful relationship with their mother. Similarly, the ability to have regular communication with their mother by electronic means, as proposed in proposed order 18, is also consistent with that objective.
The desirability of the children having a meaningful relationship with a parent, however, is potentially tempered by the issues of risk referred to in s 60CC(2)(b). In that context, the father's primary argument for opposing orders being made in terms of proposed orders 7, 8 and 18 is related to the issue of risk, specifically, the potentiality of the children being exposed to a confrontation between the parties at the point of changeover if it were to occur as set out in respect to proposed orders 7 and 8. Further, counsel for the father referred to the potentiality for conflict in circumstances where the proposed order 18 would require the father to make available a telephone or computer to facilitate the children receiving a call from their mother once per week on a Wednesday, with the potential that the call may be collected by the father.
While it is the case that the evidence establishes there has been a number of incidents where the children have been exposed to conflict between the parents at points of changeover, I am satisfied that the restraints that are otherwise contained in the orders that I have made earlier today, to a large extent, mitigate against that risk.
Also of significance is s 60CC(3)(a) of the Act, which requires the Court to have regard to any views expressed by the children. As noted, that provision is consistent with art 12 of the Convention.
As I have indicated, the children and, in particular, X, have expressed a strong desire to spend more time with their mother and the three proposed orders remaining in dispute would, if made, be consistent with that wish.
Of further relevance to my consideration of this matter is s 60CC(3)(g), which requires the Court to have regard to and respect for the child's culture and traditions. In this matter, both parents practise the same religion and the father, through his counsel, has explained that his household does not celebrate birthdays or Mother's Day.
Indeed, it was suggested that the celebration of birthdays and Mother's Day would, according to the father's religious beliefs, customs and practices, amount to being “[…]”, which was explained to me by counsel for the father as being something that is, according to the father's beliefs, forbidden or not allowed.
Counsel for the father acknowledged, however, that there is an absence of expert evidence before the Court which would enable the Court to reach that conclusion.
While in a pluralist society the Court pays due respect to all faiths and beliefs, it is to be noted that the proposed orders do not relate to any religious ceremony or celebration but simply for the children to spend time with their mother on their birthdays and also on Mother's Day .
Of additional relevance is s 60CC(3)(m) which enables the Court to have regard to any other fact or circumstances that the Court thinks would be relevant. In circumstances where these children have had limited opportunities to experience their mother's love and affection over the past two years, the Court agrees with the submission of counsel for the ICL that the opportunity for the children to spend time with their mother on their birthdays provides an opportunity for them to be the centre of attention for at least that limited amount of time that they will be spending with their mother on their birthdays.
Similarly, the opportunity for the children to spend time with their mother on Mother's Day enables them to recognise, in a small way, the special bond between them and their mother which, hopefully, the orders agreed to by the parties will further cement and promote.
Proposed order 18 is also consistent with the children having a meaningful relationship with their mother in that it will provide the opportunity for regular communication between the children and their mother even in circumstances when they are not in her care. Further, it will relieve the children from the potential discomfort of otherwise having to say to their father that they wish to make a telephone call to their mother or otherwise communicate with her by electronic means. That is not to say that the father would in any way inhibit the children making such a phone call or communicating through electronic means, however, the evidence in these proceedings satisfies me that the children are well aware of the past conflict between their parents and they may be reluctant to initiate a course of action that they perceive would potentially enliven a point of tension between their parents. Making orders for the mother to telephone the father’s household would relieve them of being placed in that dilemma.
Additionally, providing the opportunity for the children to contact, at least on a weekly basis, the mother if they are not in her care and, conversely, the father if they are not in his care, would enable the children to maintain regular contact with their half siblings who live in each of the parties’ respective households. This is consistent with s 60CC(3)(b) of the Act, which requires the Court to have regard to the desirability of children maintaining a relationship with not only their parents but also other significant persons in their lives including, in this case, their other siblings.
Accordingly, for these reasons, in addition to the orders that I made earlier today, I will also make proposed orders 7, 8 and 18. The published orders will reflect those combined orders in the one comprehensive document.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 January 2023
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