FEDERAL CIRCUIT COURT OF AUSTRALIA
| GHORBANI & SAEED | [2013] FCCA 1635 |
| Catchwords: FAMILY LAW – Parenting – interim application – allegations of family violence – involvement of the Department of Immigration and Border Protection. |
| Legislation: Family Law Act 1975, ss.4, 4AB(1), 4AB(2), 4AB(3), 4AB(4), 4(1), 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CC(4), 60CC(4A), 61C, 61DA(1), 61DA(3), 61DB, 65DAA and 69ZQ(1)(aa) Migration Act 1958, ss.197AB and 197AD |
| Goode & Goode [2006] FamCA 1346 M & K[2007] FMCAfam 26 “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR GHORBANI |
| Respondent: | MS SAEED |
| File Number: | SYC 5276 of 2013 |
| Judgment of: | Judge Kemp |
| Hearing date: | 11 October 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Hamish Cumming Family Lawyers |
| Solicitors for the Respondent: | Legal Aid NSW Sydney Central Family Law |
| Solicitors for the Independent Children’s Lawyer: | Peter Baker Solicitor |
THE COURT ORDERS PENDING FURTHER ORDER:
That commencing from after school on Thursday 17 October 2013 X (born (omitted) 2006) (“the child”) live with the father.
That the child spend time with the mother as follows:
(a)Commencing the second Thursday from the date of these Orders and continuing each alternate week thereafter from after school (or 3.00pm) Thursday to before school (or 9.00am) Monday;
(b)Commencing the Wednesday in the week following (a) and continuing each alternate week thereafter from after school (or 3.00pm) Wednesday to before school (or 9.00am) Friday; and
(c)At any other time agreed between the parties in writing.
By consent, that unless otherwise agreed between the parties in writing, the child have reasonable telephone communication with the party with whom she is not living between 7.00pm to 7.30pm with that parent to initiate the telephone call to the child's mobile telephone and the other parent to ensure that the child is available to speak on the phone and the child's mobile telephone is charged and in a place of mobile telephone reception.
By consent, to give effect to Order 2 above, where changeovers do not occur at the child's school, changeovers are to occur at the front of the (omitted) train station.
By consent, that the child be maintained on the Airport Watch List and the parties continue to be restrained by injunction from removing the child from the Commonwealth of Australia in accordance with Order 6 of the Orders of the Full Court of the Family Court of Australia dated 30 September 2013.
By consent, that both parties must engage with the child's Department of Immigration and Border Protection ("DIBP") Case Manager and Red Cross Caseworker, or any other appointed immigration caseworker, as required or recommended by the DIBP or the child's supervising Community Detention Program service provider.
By consent, that both parties must advise the other of any changes to their mobile telephone number within 24 hours of such change occurring.
By consent, that both parties must ensure that the other party is kept informed of:
(a)Any medical problems or illnesses suffered by the child whilst in their respective care;
(b)Any medication that has been prescribed for the child whilst in their respective care;
(c)Any social, school or religious functions which the child is to attend;
(d)Any appointments with the DIBP or Community Detention Program service provider; and
(e)Any other matter relevant to the child's welfare.
By consent, that the mother must ensure that the child's Red Cross Caseworker, or any other Community Detention Program service provider, is kept informed of her residential address at all times.
By consent, that for the purposes of communication between the parties, the mother and father shall communicate by telephone for matters of an urgent nature and otherwise, by SMS text message subject to the mother obtaining a mobile telephone number.
By consent, that both parties be and are hereby restrained by injunction from discussing these proceedings with the child unless otherwise directed or ordered by the Court.
By consent, that both parties be and are hereby restrained by injunction from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and each party must do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
By consent, that both the father and mother are hereby restrained (without admission) by injunction from assaulting, molesting, harassing, stalking or otherwise interfering with the other or the child.
By consent, that the father be and is hereby restrained by injunction from entering the place of residence of the mother unless otherwise agreed in writing between the parties.
By consent, liberty be granted to the Independent Children’s Lawyer to relist the matter on 7 days’ notice.
THE COURT NOTES:
That the Independent Children's Lawyer meet with the child and explain the effect of the orders to her.
THE COURT FURTHER DIRECTS:
That the father’s solicitors serve a copy of the orders made today and these reasons upon the Secretary of the DIBP by forwarding the same to (omitted).
That the father be given liberty to restore the matter on 3 hours’ notice if the child is not returned to live with him in accordance with order (1) above.
The matter be adjourned for mention on 13 December 2013 at 9.30am.
THE COURT FURTHER REQUESTS:
That the Secretary of the DIBP provide to this Court information concerning the Department’s current assessment of the parties’ migration applications so that the Court can give consideration as to what further and other directions need to be made.
IT IS NOTED that publication of this judgment under the pseudonym Ghorbani & Saeed is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5276 of 2013
| MR GHORBANI |
Applicant
And
| MS SAEED |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed 10 September 2013, the father sought certain interim parenting orders in respect of the child of the relationship, X born (omitted) 2006, currently aged 6 years and 11 months (“the child”) as follows:-
(1)That the requirement to file a certificate under s.60I of the Family Law Act 1975 (Cth) is dispensed with.
(2)That the matter be listed at short notice and with abridgement of service.
(3)That the mother return the child to the father forthwith.
(4)That the child live with the father.
(5)That pursuant to s.67Q of the Family Law Act 1975 (Cth), a recovery order issue directing the return of the child to the father.
(6)That until further order, each party their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
The Respondent mother in her Response filed 18 September 2013 sought her own interim parenting orders as follows:-
(1)That the mother have sole parental responsibility for the child provided that she liaise with the child’s immigration Case Manager/Case Worker in relation to any proposed decision relating to the long term care and welfare of the child, including but not limited to:
1.1proposed decisions about which school the child shall attend; and
1.2proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child.
(2)The child is to live with the mother.
(3)The child is to spend time and communicate with the father as agreed between the parties.
(4)Each party is restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.
(5)The father be and is hereby restrained by injunction from assaulting, molesting, harassing, stalking or otherwise interfering with the mother or the child.
(6)That pursuant to s.68L of the Family Law Act 1975 the child be independently represented by a lawyer and it is requested that Legal Aid NSW arrange such appointment on an expedited basis and appoint an experienced lawyer.
On the first return of the father’s Initiating Application, Judge Altobelli made orders for the mother to file and serve a Response and affidavit for interpreters to be appointed and for the proceedings to be adjourned to Thursday, 19 September 2013 at 9.30am for “possible” interim hearing.
On 19 September 2013, Judge Altobelli was not available to hear the matter. This Court made the following orders:
(1)Pursuant to section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for the child and the Legal Aid Commission of NSW is requested to provide such representation.
(2)The parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by that party together with all existing orders and copies of any relevant reports.
(3)Leave is granted to the Independent Children’s Lawyer to issue more than 5 subpoena.
(4)Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Inclusive Conference with a Family Consultant nominated by the Child Dispute Section in this Registry on 9 October 2013 at 9.00am and pursuant to section 11C of the Act, such conference be reportable.
(5)The matter be adjourned to 9 October 2013 at 4.00pm for mention.
(6)Two (omitted) interpreters be provided to the parties for the Child Inclusive Conference and the adjourned date.
On 20 September 2013, the father appealed the Court’s failure to make a recovery order in his favour seeking that the matter be listed for urgent hearing before a Judge, other than Judge Kemp.
On 30 September 2013, the Full Court of the Family Court of Australia heard the father’s appeal and made the following orders:
(1)The appeal be allowed.
(2)Order 5 of the orders made by Judge Kemp on 19 September 2013 be set aside.
(3)The parties’ interim applications be heard as a matter of urgency by a judge of the Federal Circuit Court of Australia as soon as possible on or after 9 October 2013.
(4)The appellant’s legal representatives:
(a)serve upon the Secretary of the Department of Immigration and Border Protection:
(i)all applications, affidavits and orders made by the Federal Circuit Court of Australia and this Court
(ii)a copy of the reasons for judgment of this Court as soon as available; and
(b)give notice to the Secretary of the hearing date or dates as soon as available.
(5)The Court requests that the Secretary of the Department of Immigration and Border Protection give consideration to appearing on the next hearing date, and/or otherwise providing to the Court information as to the implications for these proceedings of the decisions by the Minister for Immigration and Citizenship in respect of the appellant and child evidenced by letters dated 13 May 2013 and 22 May 2013 which are annexed to the affidavit of the appellant filed 10 September 2013.
(6)The appellant and respondent be and are hereby restrained from removing the child from the Commonwealth of Australia until further order. The Court requests that the Australian Federal Police give effect to this order by maintaining the name of the child on the Airport Watch List at all points of international departure from Australia until further order.
(7)There be no order for costs.
(8)The respondent be granted a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
(9)The appellant be granted a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Full Court of the Family Court of Australia did not order that the matter be heard by a Judge other than Judge Kemp and, accordingly, the matter is back before me in any event. The parties confirmed they had no objection to the matter being heard by me.
The Full Court of the Family Court of Australia stated in its reasons published on 4 October 2013 that this Court had maintained a proposition that if there was a controversy between the parties about what would be in the best interests of the child in the short term, that the Court could not or would not intervene and gave no adequate reasons for doing so. This Court should not and does not cavil with the Full Court of the Family Court of Australia. However, this Court made three propositions clear in the very short time it had to deal with the matter on 19 September 2013, given that it was not formally before me on that day and the sole purpose that the matter had been referred to me was to advise the parties that Judge Altobelli was unable to hear the matter as a result of a death in his family and further that the Court had other hearings and mentions which had, in fact, been formally listed before it. The first proposition was not that the Court could or would not intervene where the parents could not agree on what was in the best interests of the child in the short term (as recorded by the Full Court of the Family Court of Australia), but that it would only do so when it knew all of the information it wanted to consider to make that decision. The second proposition was that the Court sought to input the expertise of legal submissions from an Independent Children’s Lawyer and evidence from a family consultant following a Child Inclusive Conference as the information it wanted to consider to assist it in making the parenting orders considered in the best interests of the child. The Court notes the very brevity of its reasons for delaying any decision until those matters had been addressed. The brevity must, however, be considered against the experience of the legal practitioners who then appeared before the Court. Both practitioners would have known of the potential importance of the information referred to and as sought by the Court. The fact that the matter was listed for “mention” contemplated the receipt of any submissions from an Independent Children’s Lawyer once appointed and indeed the actual availability of the family consultant’s report which, given that a Child Inclusive Conference can take all day (including report writing time), contemplated a 4.00pm listing. Indeed, the Court notes that the actual report of the consultant in this matter was not capable of being produced until about 4.00pm the day following the conference itself. If all of the relevant information had been otherwise available to it, the Court may well have heard the matter at that time. The 4.00pm mention listing also contemplated the parties being sensibly able to take on board any recommendations made by the family consultant to seek to reach agreement. This involves the third proposition namely, that it is in the best interests of the child for their parents to reach agreement rather than simply have the Court impose a parenting regime on them. The Court further notes that one of the issues raised in the Full Court of the Family Court of Australia was the mother’s removal of the child from her then school. This Court notes that by the adjourned date, being the date of the Child Inclusive Conference, the mother had in fact returned the child to her school, given that for a substantial part of the period covering the adjournment the school was, in fact, on holiday vacation.
Order 5 made by the Full Court of the Family Court of Australia contemplated this Court being informed by the Minister for Immigration and Border Protection of the immigration status of the father, mother and the child and how that may impact on any proposed parenting orders.
On the hearing, Mr Cumming appeared for the father, Ms Cantrall appeared for the mother and Ms Baker appeared for the Independent Children’s Lawyer.
Mr Cumming tendered as Exhibit “A” copies of the correspondence from his firm dated 8 and 10 October 2013 in compliance with the Full Court’s direction for notification to the Secretary of the Department of Immigration and Border Protection and provided the Department’s response which simply stated: “Thank you for providing the information to the Department. Please keep us abreast of the outcome from tomorrow’s proceedings. Regards, (omitted)”.
The Court notes that as these proceedings commenced after 7 June 2012, it must enquire pursuant to s.69ZQ(1)(aa) of the Family Law Act 1975 (“the Act”) whether any party considers:
(1)that the child concerned has been, or is at risk of being, subjected to, or exposed to abuse, neglect or family violence; and
(2)that he or she or another party to the proceedings, has been or is at risk of being, subjected to family violence.
From the father’s perspective he makes no complaint as to risk as against the mother. On the other hand, the mother has raised risks of family violence as against the father.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration; s.60CA of the Act.
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act as follows:
(1) The “objects”…are 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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(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); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( type="1">
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, such as this, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The father relied on:
(a)His Affidavit sworn on 10 September 2013.
The mother relied on:
(a)Her Affidavit sworn on 16 September 2013.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Court 1
Child Inclusive Conference memorandum of Ms K
11/10/2013
Court
A
Letters from the applicant’s solicitor to the Department of Immigration and Border Protection dated 8 October 2013 and 10 October 2013 and the Department’s response dated 10 October 2013
11/10/2013
Applicant
B
Statement from Ms C, caseworker from the Australian Red Cross
11/10/2013
Applicant
The Court incorporates the terms of the family consultant’s memorandum prepared by Ms K on 10 October 2013 following a Child Inclusive Conference as is fully set out in these reasons but specifically noting the following:
(1)While Ms K states that the father seeks an order that the child live with him and spend time with the mother as agreed, that is by way of final orders sought. His interim order seeks that the child live with him but is silent on any time with the mother. Mr Cumming for the father in oral submissions provided his client’s time proposal as set out in paragraph 25 below.
(2)Ms K records that while the mother’s proposal seeks an order that the child live with her and spend time with the father as agreed, she stated in the interview that she does not want the child to spend any time with the father. Ms Cantrall for the mother has now provided a detailed time proposal as set out in paragraph 26 below.
(3)There are disputed allegations of family violence in this matter plus allegations that it would be unsafe for the child to return to (country omitted).
(4)Both parents alleged that the other had essentially “kidnapped” the child from the other parent.
(5)The father claims that he has been granted “political refugee” status in Australia and that the child would be at risk if she were to return to (country omitted). He says that she would be detained and arrested as a means to obtain information about him.
(6)The father denies the mother’s allegations of violence by him towards her and the child and claims that the mother lies and has fabricated such concerns.
(7)The mother alleges that the father has been physically abusive towards herself and the child. In addition, she alleged that the father sexually assaulted her 15 year old sister in (country omitted) and that she was concerned about the possibility of sexual abuse of the child. The mother claims that she has lived in fear of the father and that she continues to do so. Reportedly, she has informed the police of her concerns but no apprehended violence order has been issued.
(8)The mother denies any risk to the child in (country omitted). The mother claims that in (country omitted), the father was a member of the “(omitted) Police Guards” and she witnessed him being “cruel and violent” to others. The mother claims that he has made false allegations to Australian Immigration Authorities about himself and although she has no evidence, she questions whether he might be a “spy” or “maybe a terrorist” in Australia. Despite the above allegations, the family consultant noted that no Notice of Family Violence has been filed in this matter and it seems that there has been no Department of Family and Community Services intervention. On the morning of the interim hearing, Ms Cantrall, however, filed in Court a Notice of Child Abuse, Family Violence or Risk of Family Violence. That notice raises in essence the matters referred to in the mother’s affidavit material as set out further below.
(9)The father, generally, presented the picture of a previously positive parenting relationship with the mother following her arrival in Australia, however, the mother described a relationship characterised by her being fearful.
(10)Both parents are in dispute about the child’s history of care while in (country omitted).
(11)The father feels that the child has developed a comfortable life during the time that she has lived with him in Australia (he says that this is almost two years but the dates noted in the affidavit material seem inconsistent with this time frame). He felt that the child has settled into (omitted) Public School. He said that he has been closely monitored by the Department of Immigration caseworkers who have identified no concerns about his care of the child.
(12)Nevertheless, the father acknowledged that the mother is a “good mother” and he claims that he supported the child’s relationship with the mother post her arrival in Australia (in about late 2012). He acknowledges that the child has previously told him that she would like to live with the mother. The father feels that, at present, the mother is not suitably established (in accommodation etc) in Australia and he remains concerned about her possibly returning to (country omitted) with the child. He claims that the child might also have now been “brainwashed” against him by her mother.
(13)The mother claims that she has now secured temporary accommodation in the (omitted) area of Sydney although she says her immigration status is not permanent. She suggested that the child would potentially be at risk in the father’s care or if the child were to spend any time with him. While she claims to have no current plans to return to (country omitted), the mother says that the child had a comfortable and settled life and was closely attached to family there.
(14)The child said that she is already seven years old and will be eight years in November 2013, but that this does not correlate with the date of birth of (omitted) 2006 as stated in the Court documents. The parties all confirmed that the child’s birth date was correctly recorded but that the child considered herself one year older as at the date of her birth it was thought to be her first year of life.
(15)The child presented as a forthright child who was aware of the details of the Court dispute. At present, she wanted to remain living with the mother and to spend no time at all with the father. While the child identified that she liked (omitted) Public School and has made friends there, she said that she needs to change schools to a school closer to where she is currently living with her mother.
(16)For a child of her tender years, it is apparent that the child has not been protected from the adults’ allegations and concerns. The child generally felt the need to speak entirely positively about the mother and entirely negatively about the father.
(17)The child complained that the father possibly wants her in his care so that “Immigration will give him a free house” and she commented that the father’s visa had been “granted quicker” because he was raising a child. She also complained that the father: “always just wants to be someone’s boss”; “forces” her to do things and likes “telling everybody what to do”, such as telling her to eat her food when she does not want to or is not hungry.
(18)The child complained that she had not wanted to come to Australia with the father and had wanted to live with the mother. The child reiterated the mother’s claims that the father lied about his need to come to Australia to seek political asylum and said that the father had threatened to kill the mother and the mother’s family.
(19)The child described herself and the mother as having “fun” and she generally said that the “good thing” about being with the mother is that they are “together”.
(20)Due to the serious concerns outlined by each of the parents, the family consultant considered it important to explain to the child that essentially, she was too young to determine the outcome of the dispute and that any Court orders might be different to the views she expressed in interview. The child appeared to confidently question why this would be so. The child presented as somewhat pseudo mature for her age and she pointed out that she has “no fear” of anything.
(21)The family consultant provided the following future directions:
(a)There will need to be a careful examination of any external evidence as it relates to the potential risks to the child in the care of either parent.
(b)Any established risks will need to take priority in determining which parent the child should live with in the interim.
(c)In the absence of any such risks being confirmed, this preliminary assessment suggests that the child presents as a child who has already experienced considerable disruption and turmoil in her young life. Therefore, in the interim, until a final outcome is arrived at, stability might be the prudent approach.
(d)On the proviso that no risks are established about the father, such stability might require her continued attendance at (omitted) Public School plus a return to the father’s primary care pending further assessment. The child would also require regular and frequent periods of time with the mother.
(e)The Court might benefit from any information available from the Department of Immigration and NSW Police Service.
(f)A family report is suggested so the likely complex nature of the child’s relationships with both of the parents can be assessed.
Exhibit “B” being the statement by Ms C, caseworker for the Red Cross, provided a general background of the role of the Red Cross with asylum seekers and refugees who are in Community Detention. That general background provided:
“… Red Cross provides a range of humanitarian services for refugees, asylum seekers and others in need of support. The Community Detention (CD) program is funded by the Department of Immigration and Border Protection (DIBP) on behalf of the Federal Government. The CD program provides support to vulnerable persons awaiting decisions on Australian visa applications.”
The support role of Red Cross was noted to provide:
·Overall case management and case work support for clients in the program.
·Medical and healthcare support.
·Basic income support of $486.00 per fortnight, which is equivalent to 60 percent of Centrelink Special Benefit payments.
·Rental accommodation for clients.
·Referrals to other service providers.
·Emotional support.
·Case workers conduct regular home visits and on average see the clients on a fortnightly basis.
Specific to this matter, Ms C stated that:
“The Red Cross has been working with Mr Ghorbani and X since December 2012. Mr Ghorbani has always maintained a neat and tidy property and there have been no concerns about his parenting ability.”
The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.
The Court’s determination, therefore, is based only on a study of the documents before it including affidavits read, documents tendered and the submissions of the parties’ legal representatives. There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact after testing credibility and truthfulness.
Proposals
At the time of the interim hearing, the parties further amended their proposals as set out above and in particular, articulated time arrangements for the other parent if the child was to live with them.
The father’s proposal was that the child would live with him and spend alternate weekends from after school Friday to Sunday afternoon/evening (5.00pm) with the mother. The mother to have half school holiday time with two non-consecutive periods of one week and regular telephone contact time.
Ms Cantrall provided the Court with a detailed minute of order setting out the mother’s proposal which was to the following effect:
1.That the child live with the mother.
2.That the child spend time with the father as follows:
2.1.Each Tuesday and Thursday from after school (or 3.00pm) to 5.00pm;
2.2.Each Saturday from 9.00am to 1.00pm;
2.3.Commencing the first Sunday from the date of these Orders and continuing each alternate Sunday from 1.00pm to 5.00pm; and
2.4.At any other time agreed between the parties in writing.
3.That, unless otherwise agreed between the parties in writing, the child have telephone communication with the father each Monday, Wednesday and Friday between 7.00pm to 7.30pm with the father to initiate the telephone call to the child's mobile telephone and the mother to ensure that the child is available to speak with the father and the child's mobile telephone is charged and in a place of mobile telephone reception.
4.To give effect to order 2 above, where changeovers do not occur at the child's school, changeovers are to occur at the front of the (omitted) train station.
5.That the child be maintained on the Airport Watch List and the parties continue to be restrained by injunction from removing the child from the Commonwealth of Australia in accordance with order 6 of the Orders of the Full Court of the Family Court of Australia dated 30 September 2013.
6.That both parties must engage with the child's Department of Immigration and Border Protection (“DIBP”) Case Manager and Red Cross Caseworker, or any other appointed immigration caseworker, as required or recommended by the DIBP or the child's supervising Community Detention Program service provider.
7.That both parties must advise the other of any changes to their mobile telephone number within 24 hours of such change occurring.
8.That both parties must ensure that the other party is kept informed of:
8.1.Any medical problems or illnesses suffered by the child whilst in their respective care;
8.2.Any medication that has been prescribed for the child whilst in their respective care;
8.3.Any social, school or religious functions which the child is to attend;
8.4.Any appointments with the DIBP or Community Detention Program service provider; and
8.5.Any other matter relevant to the child's welfare.
9.That the mother must ensure that the child's Red Cross Caseworker, or any other Community Detention Program service provider, is kept informed of the child's residential address at all times.
10.That for the purposes of communication between the parties, the mother and father shall communicate by telephone for matters of an urgent nature and otherwise by SMS text message.
11.That both parties be and are hereby restrained by injunction from discussing these proceedings with the child unless otherwise directed or ordered by the Court.
12.That both parties be and are hereby restrained by injunction from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and each party must do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
13.That the father be and is hereby restrained by injunction from assaulting, molesting, harassing, stalking or otherwise interfering with the mother or the child.
14.That the father be and is hereby restrained by injunction from entering the place of residence of the mother and child unless otherwise agreed in writing between the parties.
15.Liberty be granted to the parties to relist the matter on 7 days notice.
Notations
A. That the Independent Children's Lawyer meet with the child and explain the effect of the orders to her.
OR IN THE ALTERNATIVE
1.That commencing from after school on Monday, 14 October 2013 the child live with the father.
2.That the child spend time with the mother as follows:
2.1Commencing the first Thursday from the date of these Orders and continuing each alternate week thereafter from after school (or 3.00pm) Thursday to before school (or 9.00am) Monday;
2.2Commencing the second Wednesday from the date of these Orders and continuing each alternate week thereafter from after school (or 3.00pm) Wednesday to before school (or 9.00am) Friday; and
2.3At any other time agreed between the parties in writing.
3.That, unless otherwise agreed between the parties in writing, the child have reasonable telephone communication with the party with whom she is not living between 7.00pm to 7.30pm with that parent to initiate the telephone call to the child's mobile telephone and the other parent to ensure that the child is available to speak on the phone and the child's mobile telephone is charged and in a place of mobile telephone reception.
4.To give effect to order 2 above, where changeovers do not occur at the child's school, changeovers are to occur at the front of the (omitted) train station.
5.That the child be maintained on the Airport Watch List and the parties continue to be restrained by injunction from removing the child from the Commonwealth of Australia in accordance with order 6 of the Orders of the Full Court of the Family Court of Australia dated 30 September 2013.
6.That both parties must engage with the child's Department of Immigration and Border Protection (“DIBP”) Case Manager and Red Cross Caseworker, or any other appointed immigration caseworker, as required or recommended by the DIBP or the child's supervising Community Detention Program service provider.
7.That both parties must advise the other of any changes to their mobile telephone number within 24 hours of such change occurring.
8.That both parties must ensure that the other party is kept informed of:
8.1Any medical problems or illnesses suffered by the child whilst in their respective care;
8.2Any medication that has been prescribed for the child whilst in their respective care;
8.3Any social, school or religious functions which the child is to attend;
8.4Any appointments with the DIBP or Community Detention Program service provider; and
8.5Any other matter relevant to the child's welfare.
9.That the mother must ensure that the child's Red Cross Caseworker, or any other Community Detention Program service provider, is kept informed of her residential address at all times.
10.That for the purposes of communication between the parties, the mother and father shall communicate by telephone for matters of an urgent nature and otherwise by SMS text message.
11.That both parties be and are hereby restrained by injunction from discussing these proceedings with the child unless otherwise directed or ordered by the Court.
12.That both parties be and are hereby restrained by injunction from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and each party must do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
13.That the father be and is hereby restrained by injunction from assaulting, molesting, harassing, stalking or otherwise interfering with the mother or child.
14.That the father be and is hereby restrained by injunction from entering the place of residence of the mother unless otherwise agreed in writing between the parties.
15.Liberty be granted to the parties to relist the matter on 7 days notice.
Notations
B. That the Independent Children's Lawyer meet with the child and explain the effect of the Orders to her.
The Independent Children’s Lawyer generally supported the father’s position, save that she proposed that the mother spend “possibly” two out of every three weekends with the child.
The parties substantially agreed on interim orders 3, 4, 5, 6, 7, 8, 9 and 10 (subject to the provision of a mobile phone number for the mother), 11, 12 and 13 (on the basis of being made mutual and without admission), 14 and 15 (with liberty to be granted to the Independent Children’s Lawyer in lieu of the parties) as set out in the mother’s alternate proposal referred to in paragraph 26 above.
Issues
The essential issues in dispute the subject of determination are:-
(1)parental responsibility;
(2)who the child is to live with;
(3)time to be spent with the child and the practicability of such time.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
(1)The father was born on (omitted) 1982 and is currently 31 years of age.
(2)The father lives at (omitted), and is unemployed.
(3)The father needs an interpreter in the (omitted) language.
(4)The mother was born on (omitted) 1983 and is currently 30 years of age.
(5)The mother discloses her address as c/- Legal Aid NSW but now lives in temporary accommodation in the (omitted) area of Sydney.
(6)The mother needs an interpreter in the (omitted) language.
(7)The father says the parties married in around 2004 (the mother says 2002) and the child being a child of their relationship was born on (omitted) 2006. The father says the parties were divorced in 2008 (the mother says 2009).
(8)Both parties and the child are (omitted) citizens and both parents travelled to Australia seeking asylum as refugees. The child travelling with the father and the mother travelling separately.
(9)The father and the child have been released into community detention pending determination of their migration claims.
(10)The mother is living in the general community on a bridging visa pending determination of her migration claim.
(11)On 10 September 2013, the father commenced these proceedings.
The father in his affidavit asserts:
(1)That the parties divorced in 2008 and the child then lived with the mother and her mother for a period of about one year and then moved in to live with him. The father says that the mother would see the child approximately two days per week.
(2)That in mid or late 2012 he decided to travel to Australia with the child to seek asylum because his family were on a political black list in (country omitted). The father says that the mother supported his decision.
(3)That in around October 2012 he flew with the child, his friend and her brother from (country omitted) to (country omitted) and then to (country omitted) where he stayed for one month and then boarded a boat with the child to travel to Australia. He says that he was on the water for about 5 days until his boat was intercepted by the Australian Navy near Ashmore Reef whereupon he and the child were subsequently transferred to Darwin on 12 November 2012 and then spent two months in immigration detention before being transferred to a detention centre in Sydney and being subsequently released into community detention on 20 January 2013. The father attaches to his affidavit letters from a person described as (omitted), Department of Immigration and Citizenship being letters of introduction confirming approval by the Department to allow the father and the child to reside at an address in (omitted), without being accompanied or restrained by a Departmental Officer (a “residence determination”).
(4)That whilst in immigration detention and while in the Australian community, he and the child had regular telephone calls with the mother back in (country omitted).
(5)That in about May/June 2013, the mother telephoned him to inform him that she had arrived in Australia on a boat and was also in detention in Darwin.
(6)That he then lobbied the Department of Immigration and Border Protection for the mother to be released into the community so that she could see the child. The father says that whilst the Department did not accept his request, in about July 2013 the mother was so released.
(7)That since July 2013, he has fostered a meaningful relationship between the child and the mother which included the mother staying with the child and himself for several days from time to time but that the parties did not resume their relationship.
(8)That while he and the mother were in a relationship in (country omitted), she did most of the caring for the child and that this continued for about a year after their separation. The father asserts that he was the child’s primary carer after the child commenced to live with him. The father asserted that he was the sole carer for the child on their boat voyage to Australia and at least up until the mother was also released into the community in July 2013. That is, between October 2012 and July 2013 – some nine months.
(9)That after he was released into community detention he has enrolled the child in primary school in (omitted) and then later at (omitted) Public School.
(10)That since the mother has been released into the community she has spent a significant amount time with the child. The father says that he had an agreement with the mother that she could pick the child up from school on alternate days.
(11)That after the mother’s release into the community she informed the father that she was “living with a man in (country omitted)” and that she could not forget him and needed to go back. The father says that the mother continued to talk about this between June/July 2013 and 8 September 2013 when she stated: “I have made my decision I have to go back to (country omitted) with my daughter”. The father says that he spoke to both his father and the mother’s mother who counselled her about not taking the child back to (country omitted).
(12)That on 9 September 2013 the mother informed him that she had spoken to her case worker who said that she could take the child to the police. The father says that he attended at the child’s school where the mother stated that she was there to take the child to the police because “we have to go to (country omitted)”. The father stated that he did not want this to happen but allowed the mother to take the child shopping on the basis that she would then return to the house with the child that evening. It would appear the mother did so but the father said it was then “too late” to have a discussion and the parties “just ate some dinner instead”.
(13)That on 10 September 2013, he asked the mother to take the child to school as he wished to seek some legal advice with his Red Cross case worker. The father said that he subsequently learnt that the mother had not taken the child to school and had gone to the police and that they were arranging accommodation for the mother and the child in a refuge. The father says that he understands that the mother has told the police that there is family violence and he denies that allegation.
(14)That if the child is returned to (country omitted), Government Officials may torture or physically injure her and further that as he is intending to stay in Australia, her return would deprive the child of a meaningful relationship with both parents. Further, he submits that his community detention is premised on the fact that the child is living with him and that if she is not he is unsure as to what would happen to his asylum application.
(15)That he is concerned that if the child is not returned to his care her education in Australia would be disrupted.
(16)That the conditions for his community detention provide for a house for him and the child and regular monetary payments and as such, he believes he is in a better financial position than the mother to care for the child.
(17)That it is in the child’s best interests for her to remain living with him as he is supportive of the child having a meaningful relationship with the mother.
The mother, in her affidavit, asserts:
(1)That the father was violent in trying to pour hot tea over her which poured on the child’s face in about 2010.
(2)That in 2005 the mother’s sister reported that the father raped her sister and further threatened her sister that if she did not have sex with him he would report her to the authorities.
(3)That the father was a member of the army of the Guardians of the (omitted) Revolution known as the (omitted), being part of (omitted). The (omitted) being a branch of the (country omitted) Military.
(4)That the mother confronted the father about the matters in paragraph (2) above and he beat her.
(5)That the father stole money from the mother and her brother.
(6)That the father drank alcohol to the point of intoxication almost every night.
(7)That the father had extra-marital relationships even though this was contrary to the (omitted) religion.
(8)That following separation the child remained in the mother’s care in accordance with (omitted) law until the age of seven years. The mother says that in any event the child spent three days per week with the father due to the father making physical threats against the mother if the child was not made available to him.
(9)That the father relies on family and friends to care for the child as he was unable to do so himself.
(10)That when the child was about four years old, the father removed the child from the mother’s care for about three months and the mother obtained a Court order for her return. The Court notes that a copy of this Court order has not been made available to it.
(11)That the father had removed the child from the mother for a period of three days when the child was being breastfed. The mother asked the father to return the child as she would get sick without being breastfed and the father’s response was “just let the child die”.
(12)That she was unaware that the father intended to bring the child to Australia by boat.
(13)That the father, after he arrived in Australia, made contact with the mother on the basis of resuming a relationship.
(14)That the child complained that the father left her in the library all day and left her at home at night on the basis that he wished to go out and have fun.
(15)That the child informed the mother that the father punishes her and leaves her in the bathroom and hits her and slaps her on the face.
(16)That as a result of the matters in paragraphs (14) and (15) above, the mother made arrangements to travel to Australia by boat.
(17)That, on 8 September 2013, the father dragged the mother out of bed by her hair and slammed her head against a door and attempted to hit the child on the head with an i-pad. The mother says that the child is fearful of being hit by the father and appears withdrawn and fearful.
(18)That the mother had made reports to (omitted) Police Station on 9 September 2013 and 10 September 2013. The Court notes that a copy of any police report has not been made available to it.
(19)That the mother had taken the child and sought emergency temporary accommodation with a friend on the advice of NSW Police.
(20)That the father’s home where the child resided was filthy with cockroaches throughout the house including in the child’s bedroom. The child’s clothes were dirty and her personal hygiene “extremely poor”. She appeared to the mother not to have been bathed for several days and had sores in and around her mouth. The mother took the child to the doctor who organised a specialist. The mother washed the child’s mouth out with salt water. The Court notes that a copy of any doctor’s report has not been made available to it. The Court notes that the report of Ms C referred to at paragraph 21 above provided by the father is inconsistent with some of the mother’s assertions. While Ms C did not provide an affidavit as it was stated by Mr Cumming that Red Cross did not permit that, she nevertheless attended at Court and the Court would be reasonably confident that Ms C was well aware that the Court was relying on the contents of the letter signed by her and by her attendance she supported the submissions made by Mr Cumming on behalf of the father.
(21)That the mother says that she was primarily responsible for the child’s care.
(22)That the mother says that since the child has been living with her the child has been bathed, fed and dressed.
(23)That the child does not wish to live with the father and does not want to spend time with him and does not wish to spend time with him on her mobile phone.
(24)That the child has not attended school since coming into the mother’s care as she was fearful that the father would attempt to remove the child.
(25)That the mother wishes to have the child return to school once she has obtained independent stable accommodation arranged through her case manager at Red Cross.
(26)That the mother is currently making enquiries and arrangements for accommodation. Ms Cantrall submits that the mother’s bridging visa allows her to live where she chooses.
(27)That the mother is currently in receipt of a fortnightly benefit from Settlement Services International (SSI) of approximately $440.00.
(28)That the mother will comply with any requests of the Department of Immigration and Border Protection.
(29)That the father removed the child from (country omitted) without the mother’s consent and threatened her that if she tried to stop him from doing so he would kill her and her family. Mr Cumming submitted that this assertion was inconsistent with the mother’s evidence at paragraph (10) above where she said she had obtained a Court order against the father. However, the mother does not refer to a threat to kill her and her family when she deposed to obtaining an order in that paragraph.
(30)That the mother has been the child’s primary carer except for short periods when the father removed the child from the mother in (country omitted) and when the father travelled with the child to Australia and until the mother’s arrival in Australia.
Given the airport watchlist order made by the Full Court of the Family Court of Australia, the father’s expressed concern that the mother will remove the child back to (country omitted) where she would be exposed to a risk has been dealt with. This order will continue.
There appear to be a number of disputed facts as follows:
(1)Whether the father had been violent to the mother and the child.
(2)Whether the father had travelled to Australia with or without the mother’s consent.
(3)Whether the child was properly looked after in the father’s care.
(4)Whether the child had been primarily in the father’s or the mother’s care prior to the father travelling with the child to Australia.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act) [emphasis added].
The Court notes that this interim decision may be disregarded if a different decision is to be made at the final hearing, pursuant to s.61DB of the Act.
As the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 states, unless displaced by court order, the parties’ parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
If the issue is not a “major long-term issue” then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).
Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done, the other aspects of parental responsibility may be exercised jointly or independently and the way in which it is exercised should be provided for in any orders. See Newlands & Newlands [2007] FamCA 168.
Parental Responsibility
The Court finds that the presumption will not apply in this case as whilst the Court’s discretion is not to be exercised in a broad exclusionary manner on an interim hearing, the limited/controversial evidence before it makes the application of the presumption or it’s rebuttal difficult and supports reliance on s.61DA(3) of the Act to negate the application of the presumption.
Accordingly, the Court makes no orders as to parental responsibility.
Live with/time spend arrangements
Accordingly, to determine what live with/spend time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
(1)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(2)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.
The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.
For proceedings commenced after 7 June 2012, the definition of family violence no longer requires a person to reasonably fear for their own safety or well-being.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (see s.4AB(3) of the Act). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The Court cannot order that the parties and the children have a meaningful relationship. In M & K[2007] FMCAfam 26 [at para.44], Altobelli FM (as he then was) quoted from Dr P’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:
“… courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.
The mother asserted that the father had kidnapped the child from her. The father asserted that the mother had kidnapped the child from him.
The mother makes serious allegations of violence as against the father. The father, on the other hand, conceded in the Child Inclusive Conference memorandum that the mother was “a good mother”.
The father asserts a risk to the child if the child was to return to (country omitted). The mother disputes that risk. However, the injunction and airport watchlist order made by the Full Court of the Family Court of Australia and continued by agreement between the parties, will protect the child as against that risk (see paragraph 33 above).
The father says that the mother agreed to him travelling with the child by boat to Australia. The mother disputes that. However, it is not contested that the father did so travel and did so expose the child to extreme risks at sea. The Court can take judicial notice of the current issues and risks to those travelling between (country omitted) and Australia given the number of current deaths reported at sea in such circumstances. However, the Court places little weight on that at this stage as it does not have a complete understanding of the risk factors asserted by the father to ground his refugee claim including his understanding of the need to remove himself and the child from physical and other harm outside Australia.
The father’s only current concerns as expressed against the mother relate to the adequacy of her accommodation and about the child being “brainwashed” against him. The mother says that she has now secured temporary accommodation in the (omitted) area.
The father says that he has not been provided with information concerning the mother’s temporary accommodation and by virtue of it being “temporary”, there is necessarily a risk for the child if her accommodation has to change and as to how any such change would impact on the child attending school and potentially spending time with him.
Notwithstanding the child reporting to Ms K that she would need to change school to a school close to the mother’s residence, Ms Cantrall made it clear that the mother would support the child continuing at (omitted) Public School, in accordance with Ms K’s recommendation for stability for the child. The Court accepts Ms K’s recommendation in that regard and places weight on it. The Court is, however, concerned that the mother’s position may not continue given the child’s expressed concerns to Ms K that she may need to change schools to a location closer to the mother’s residence. This Mr Cumming submits, is a real risk given that the mother’s accommodation has only been described as temporary and the mother has only facilitated the child’s attendance at school on some three days prior to the interim hearing. There was no evidence put before the Court as to the logistics of the mother’s travel arrangements between (omitted) and the (omitted) Public School. The Court accepts Mr Cumming’s submission that the father has been able to facilitate the child’s attendance at that school given his residence requirements under the Residence Determination.
The Court is concerned by the child’s repetition, before the family consultant, of a number of the mother’s concerns as against the father. This may be seen as the mother preventing the child from making or keeping a connection up with the father in terms indeed of the definition of family violence itself. However, the mother’s proposal now sees time being spent with the father, notwithstanding her initial assertion to Ms K that she did not want the child to spend any time with the father.
The Court must deal with this matter to a large extent by balancing competing risks or perceived risks.
The response from the Department of Immigration and Border Protection, referred to at paragraph 11 above which simply stated: “Thank you for providing the information to the Department. Please keep us abreast of the outcome of tomorrows proceedings” left much to be desired. One could hardly say that that was a fulsome compliance with the Full Court’s request as set out in order 5 referred to in paragraph 6 above. Mr Cumming submits and the Court accepts that the child’s current community detention position requires the child to reside at (omitted) pursuant to a residence determination made by the Minister for Immigration and Border Protection. That is the same address that the father is required to reside at pursuant to his residence determination. The Court also accepts Mr Cumming’s submission that this application cannot be considered a defacto application to review the Minister’s discretionary determination.
If the child was not to reside at the father’s address, there would clearly be a risk that the child would be placed back into detention. There is a similar risk to the father. There is no such apparent risk to the mother, given what Ms Cantrall asserts is her bridging visa position. If the father was placed in detention (and the child was not) that would more than likely impact on his ability to spend time with the child and detrimentally affect his relationship with the child. If the father was placed in detention it would appear likely that the child might also be placed in detention, given the similarity of their current residence determinations provided by the Minister for Immigration and Border Protection.
The basis for the residence determinations referred to in paragraph 61 above appears to be s.197AB of the Migration Act 1958 which states that if the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons are to reside at a specified place instead of being detained.
Ms Cantrall submits that pursuant to s.197AD of the Migration Act 1958 if the Minister thinks it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect but subject to subsection (2).
Ms Cantrall submits that a variation to the Minister’s residence determination could contemplate the child living with the mother at her address. However, there is simply no evidence of that before the Court.
The failure by the Minister to take up the Full Court’s request cannot be inferred, as submitted by Ms Cantrall, as a willingness to make a residence determination variation as submitted by her and further, a proposed order that contemplated the child living with the mother, subject to the Minister’s consent, is somewhat problematic given that there is no evidence as to how that consent could be obtained and how long it would take for such consent to be given. No request of the Minister has been made by the mother which could form the basis of that evidentiary chain to assist the Court in that regard. This is no criticism of Ms Cantrall who was able to research the legislative basis for her submission but there is no evidence that would assist the Court in that regard. In those circumstances, the Court is very concerned that the child would be placed at a risk of losing her ability to reside in the community and attend at the very school which Ms K considered as critical to her stability. Significant weight is attached to that issue in support of the father’s and the Independent Children’s Lawyer’s proposal as to where the child would live, subject to considering the mother’s issue of the father’s asserted family violence.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(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;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:-
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
The mother says that she did not agree to the child travelling with the father to Australia.
The child complained to the consultant that she had not wanted to come to Australia with the father and had wanted to live with the mother. This echoes the mother’s assertions.
It appears from the conversations quoted by the family consultant that the mother has engaged the child in the dispute as all the matters raised were entirely negative of the father and supported exactly what the mother was asserting.
The child made it clear to the consultant that she wanted to remain living with the mother and spend no time with the father. The Court notes that this is now inconsistent with the mother’s own position as articulated in her proposed orders.
The child also stated that she liked (omitted) Public School and had made friends there but considered that she needed a change of schools to a school closer to where the mother was living. This too is now inconsistent with the mother’s proposal. However, weight is attached to the child’s view as to her schooling at (omitted) Public School being of significant benefit.
The family consultant was of the view that little weight could be given to the child’s views given her age and the serious concerns outlined by each parent.
The family consultant noted that the child appeared “pseudo mature” for her age.
The Court notes that the child’s views clearly align with those of the mother and were therefore, either genuinely held or had been in some way influenced by the mother (as feared by the father). In any event, the Court accepts the position that given the strength of these views, their timing and formulation, it would appear they have been influenced by the child’s understanding of the mother’s position. The Court balances as against the family consultant’s report of the negative views of the father held by the child, the positive observations obtained from the Independent Children’s Lawyer’s enquiries with the child’s school. Those observations being that both parents demonstrated appropriate parenting capacity and the child appeared attached to each parent.
Considering the age and maturity level of the child and the views of the family consultant, at this stage the Court gives minimal weight to the current expression of the child’s views.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The child in not wanting to spend time with the father and being so critical of him in terms of that reported by Ms K, makes it difficult to consider her relationship with the father. She, however, described her relationship with the mother as “fun” and “good” and that it was good to be “together”. The child expressed a view to live with the mother which would support a positive relationship with her. This positive relationship is also supported by the father.
While Ms K indicated the child might be pseudo mature, the child also reported that she had “no fear” of anything. This supports that she is not herself fearful of the father.
The mother’s evidence as to the child’s close relationship with extended family in (country omitted) is of little relevance to today’s application.
Ms Baker, in the very limited time available to her, had made enquiries with the staff at the (omitted) Public School who also confirmed that for the child’s sake her schooling should not change. The school confirmed that they had observed the father to be appropriately engaged with the child’s education there and held no concerns. The school made a similar observation concerning the mother. The Court notes that the child had been back at that school since Tuesday, 8 October 2013 following the recent school holiday period and that her return to the school has been facilitated by the mother.
The Court is unable to make any findings given the disputed history of care given by the parties. The Court notes, however, that until the mother’s unilateral removal of the child in September 2013, the child had been in the father’s exclusive care for about nine months (see paragraph 31(8) above). Weight is attached to that in support of the father’s and the Independent Children’s Lawyer’s proposal.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The mother is seeking sole parental responsibility and the father equal shared parental responsibility. The Court repeats the matters set out at paragraph 41 above.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father’s evidence was that he was able to support the child with the financial assistance provided to him which he asserted was greater than that provided to the mother. Ms Cantrall, however, submitted that this differential may be a product of the fact that until the mother removed the child, the father had the exclusive financial support obligations for the child and if the live with arrangements were to otherwise change in her client’s favour, that financial position could also change. However, again there is no direct evidence before the Court of that and at the moment the father’s financial position is based on him having the current support of the child and some weight is attached to that in support of the father’s and the Independent Children’s Lawyer’s proposal.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father’s proposal will see the return of the child to his care which has existed for some nine months. The Court is concerned that the child’s separation from the father and her living with the mother has exposed the child to the mother’s adverse views of the father as reported by the family consultant. Living with the father who has not expressed such adverse views as against the mother to an extent has the potential for minimising the child’s exposure to the parental dispute so as to avoid becoming aligned with one party as against the other. The family consultant’s report clearly evidences the child’s current alignment with the mother as against the father. The Court gives weight to this in support of the father’s and the Independent Children’s Lawyer’s proposal. The Court is of the view, having regard to the need to ensure the child’s safety and ongoing relationship issues, that the mother’s alternate proposal, as submitted by Ms Cantrall, is to be given significant weight.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There appears no difficulty with the father’s proposal given that the Independent Children’s Lawyer’s enquiries with the school confirmed that both parents were observed to engage themselves in the schooling environment. The Court is, however, concerned that the nature of the mother’s temporary accommodation has the potential to expose the child to the risk of a schooling change, not apparent if the child was to live with the father and weight is attached to that in support of the father’s and the Independent Children’s Lawyer’s proposal. (omitted) Public School, it would appear, would provide a neutral environment for both parties’ relationships including the facilitation of changeovers to occur and develop.
The mother’s actual address has not been disclosed. The father’s address has been disclosed. The mother said she is fearful of disclosing her address to the father but confirmed that she would disclose the same to the Independent Children’s Lawyer.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The father has been able to facilitate the child’s attendance at school and has done so from his current residence. The mother says that she too can do so. The mother, however, has had limited experience in doing so given that the child has only attended school since 8 October 2013 under the mother’s care. The Court is concerned, given that the child has reported that she may need to change schools to a school closer to the mother’s residence, that stability at the child’s current school favours the father’s and the Independent Children’s Lawyer’s proposal.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The mother and father are both (country omitted) and needed the assistance of interpreters in the (omitted) language. The child was considered to be forthright and somewhat “pseudo” mature for her age.
The child also needed the assistance of a (omitted) interpreter, but appears to have attended (omitted) Public School where she has made friends and her continued education there is supported by the school.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Court is concerned by the father travelling with the child by boat to Australia in circumstances where the child would have otherwise been placed at some risk to her personal safety. However, the Court repeats the matters set out in paragraphs 55 above.
The Court is concerned by the inclusion of the child in the family dispute particularly her adoption of the mother’s position to the total exclusion of the father since the child was removed by the mother to live with her.
(j) any family violence involving the child or a member of the child's family;
If the evidence of the child is accepted, she did not wish to travel to Australia by boat with the father. The mother’s evidence was that she did not consent to this travel. The father’s evidence was that she did consent.
The mother asserts that because of the father’s violence he is a risk for the child.
The mother says that the incident referred to in paragraph 32(17) above was the genesis of her decision to remove the child from the father. While the Court accepts that the issue must be whether the incident occurred and not whether a report was made when the incident is, in fact, disputed the availability of a contemporaneous report to third parties can often assist the Court. The child was not questioned about this incident and did not describe it in terms of her stated concerns about the father which appeared more focussed on what she considered was his “bossy” attitude towards her.
Ms Cantrall submits that the father’s violence is of the interpersonal kind where there would be little objective evidence to support it other than from the mother herself. Where the child repeated that the father had threatened to kill the mother and herself, she nevertheless stated that she was not fearful of anything. The child also re-counted that her objections to the father were as set out in paragraph 20(17) above. These appeared to be of greater concern to her than her expressions which reiterated the mother’s claims, albeit denied by the father.
The mother, however, says that she will support frequent ongoing time between the child and the father given the agreed restraints on behaviour the subject of consent orders. Weight is attached to that in supporting also the father’s and Independent Children’s Lawyer’s proposal.
(k) If a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This factor does not apply to this child.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court finds that as this is an interim hearing, this factor must be assessed in this light.
(m) any other fact or circumstance that the court thinks is relevant
The mother asserts that if the child was to be returned to the father’s care and then further information came to light necessitating a return of the child to her, then that would be a further disruption for the child. However, the Court is of the view that at this stage on what is known by the Court it is currently in the child’s best interests to return to live with the father and spend time with the mother in accordance with her alternative proposal.
The father’s care of the child appears to be under the watchful eye of Red Cross. The mother also confirms that she, too, will make enquiries of Ms C and discuss matters with her. This is of some comfort to the Court. The Court accepts Ms Cantrall’s submissions that given the evidence before the Court, the Court cannot simply accept that Red Cross is in some way the defacto presence of the Department of Immigration and Border Protection. The Court notes that the said Department wished to be updated on the outcome of these proceedings and in those terms a copy of these orders and reasons will be directed to be provided by the father’s solicitor to the Department to the attention of (omitted). The Court would anticipate that the Department will also be ensuring a watchful eye on the parents and the child. The Court will also further request the Department to further respond to the request made by it of the Full Court and provide some input to this Court as to how the Department’s assessment of the parents’ and child’s migration application is to proceed so that that issue can be considered by the Court in relation to any future directions.
Matters in s.60CC(4) & (4A) of the Act
As and from 7 June 2012, s.60CC(4) and (4A) of the Act have been repealed.
Reasonably practicability of ‘spending time’
While the Court is not obligated to consider the matters under s.65DAA of the Act given its position referred to in paragraphs 41 and 42 above, the Court notes that none of the parties have raised any issues as to the reasonable practicability of their competing proposals.
Conclusion
Finally, the Court must have regard to all the matters set out in s.60CC of the Act to consider how together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
Considering the above factors and the assessment of risk to the child as between living in the mother’s household and the father’s household, the mother raises serious concerns about violence, which while disputed by the father, cannot be determined on an interim hearing. No doubt on the father’s own evidence he has exposed the child to the risk of death by undertaking the voyage from (country omitted) to Australia by boat as a claimed refugee. The mother says that she did not agree with that trip. The father says that the mother did. The mother on her own evidence also travelled by boat to Australia, risking her own life. This cannot be determined at this stage.
The family consultant’s recommendation is based on the proviso that no risks are established about the father. On an interim hearing that cannot be established. However, the Court places significant weight on the family consultant’s recommendation given the time spent by the family consultant with each parent and the child.
The father’s concern as to the child being removed back to (country omitted) and being exposed to personal harm there has been removed by the injunction against both parties from removing the child from Australia in addition to the watchlist order.
The father concedes that the mother was a “good mother” and that he supported the child’s relationship with her and as such is supportive of the alternative time proposal provided by Ms Cantrall. That will also engage the mother in the child’s schooling and provide a protective framework for the child given the mother’s assertions. The school reports favour the mother’s ongoing engagement with the child’s school and the child’s schooling.
Other parenting matters
The parties have reached substantial agreement as set out in paragraph 28 above and orders will be made by consent in those terms.
As the matter was conducted on the basis of a hearing of the competing live with arrangements for the child and not on the basis of an urgent recovery order, the Court will make the orders so far as the child living with the father and spending time with the mother which were the subject of the parties’ dispute. The Court also notes that the parties have agreed to a consent notation that the Independent Children’s Lawyer will meet with the child to explain the Court’s orders. Given that, the Court will not make an immediate recovery order. If the child is, however, not returned by the mother to comply with the live with order made, then the Court will issue an urgent recovery order and will give the father liberty to restore the matter before me on three hours’ notice to seek the same. The Court will relist the matter for further mention on 13 December 2013 at 9.30am.
The Court is satisfied on balance, that the orders set out above at the commencement of these reasons are in the child’s best interests and accordingly, will so order.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 16 October 2013
- AGLC
- Ghorbani and Saeed [2013] FCCA 1635
- Case
- [2013] FCCA 1635
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicants had established a real chance of suffering significant harm, specifically persecution, if returned to Iran. This required the Court to assess the credibility of the applicants' claims regarding their political activities and the potential consequences they might face from the Iranian authorities. The Court also had to consider the Minister's assessment of these risks and whether it was reasonable.
Kemp J considered the evidence presented by both the applicants and the respondent, including country information reports and the applicants' own testimony. His Honour applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent case law concerning the assessment of claims for protection visas. The Court's task was to determine if there was a real chance of persecution, a standard that requires more than a mere possibility but less than a probability. His Honour found that the applicants had not discharged the onus of proving that they would face persecution upon return to Iran, and therefore, their application for an injunction failed.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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