Wife Opposes Husband's Application for the Children to Live with Him
Fayad & Khalil [2021] FCCA 1470 (30 June 2021)
The parties dispute whom their children should live with. The Husband alleges that the Wife sabotages the children's supervised time with him. The Wife alleges family violence against the Husband. The Court, in deciding this dispute, took into primary consideration the children's best interests.
Facts:
The parties cohabited from 2010, married in 2015 and separated in 2016. On 19 May 2021, the Father filed an application seeking orders that the children live with him, that the Mother not see the children for a period of two weeks from when the children commenced to live with him and that thereafter the children the children spend each alternate weekend with the Mother. On 15 June 2021 the Father filed exhibit F1 15 June 2021 which sought in the alternative, orders including that the parties attend for family therapy, the appointment of an Independent Children's Lawyer and psychological assessment of the parties instead of continuing with the regime of supervised time as ordered previously. The Court appointed an Independent Children's Lawyer because of the Husband's allegations of psychological abuse of the children by the Wife; and the Wife's allegation of family violence perpetrated by the Husband against the Wife and the children.
The Mother asserts that the Father sought to separate their children on the basis that the parties could have one each. The Father says that in June and July 2016, when the boys were babies, he saw the children for approximately one hour at a time at a shopping centre supervised by the Mother. These short periods of time supervised by the Mother continued until about September 2019 and that thereafter the time was irregular until August 2020 when time stopped altogether.
Issue:
Whether or not the residence of the children should be changed so that they live with their Father instead of their Mother with whom they had lived their entire lives.
Applicable law:
Family Law Act 1975 (Cth), ss 60CA, 60CC - provides the means for which a court determines what is in a child's best interests.
Analysis:
Great caution should be exercised in making factual findings on an interim hearing without the opportunity for the evidence to be examined in detail.
The children's best interests will likely be best advanced, at this time, by the pursuit of family therapy involving the parents and the boys and not a drastic change of residence.
The primary attachment of these boys is with their Mother and she was the only carer they have known throughout their lives. To remove them from the care of their Mother in place the care with their Father who they simply do not know would be traumatic for them.
Conclusion:
The Court ordered that children X and Y be independently represented. It is requested that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible. Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer should file a Notice of Address for Service. Upon notification of such appointment, the parties (by their solicitors if represented) should provide to the Independent Children's Lawyer copies of all relevant documents. The Wife is ordered to arrange for the children to attend upon a paediatrician for the purposes of an assessment and report in relation to the children's development and behavioural issues. The Husband and the Wife are to attend upon Dr B ("the psychologist") for risk assessment and psychological evaluation. The Husband, the Wife and the children are ordered to participate in reportable family therapy with Mr C ("the family therapist").