Albert and Edell - [2010] FMCAfam 1487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALBERT & EDELL

[2010] FMCAfam 1487

FAMILY LAW – Parenting – 5 year old by – no relationship between father and child – child unaware father is his father – child believing his half siblings’ father is his father – father unsuccessfully seeking asylum in Australia for 11 years – likelihood of father’s deportation – mother opposed to any relationship between father and son – effect of change on child.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Applicant:

MR ALBERT

Respondent:

MS EDELL

File Number:

PAC 2913 of 2009

Judgment of:

Halligan FM

Hearing date:

26 November 2010

Date of Last Submission:

26 November 2010

Delivered at:

Parramatta

Delivered on:

26 November 2010

REPRESENTATION

Solicitors for the Applicant:

Abboud & Co

Solicitors for the Respondent:

Farah Lawyers Solicitors & Barristers

Independent Children’s Lawyer

Dignan and Hanrahan Solicitors and Attorneys

ORDERS

The mother shall have sole parental responsibility for the child [X] born [in] 2005.
The child shall live with the mother.
There is no order for the child to spend time or communicate with the father.

IT IS NOTED that publication of this judgment under the pseudonym Albert & Edell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 2913 of 2009

MR ALBERT

Applicant

And

MS EDELL

Respondent

REASONS FOR JUDGMENT

This is the hearing of an application by the father for parenting orders in relation to the child of the parties, [X], born [in] 2005. [X] is therefore aged five years.
The orders sought have changed as the matter has progressed. Until a few days before the hearing was due to commence, the father was seeking equal shared parental responsibility, that the child live with the mother, and that the child spend alternate weekends and half school holidays with him. At the commencement of the hearing the father changed those orders in relation to the time he was to spend with the child, maintaining the equal shared parental responsibility provision and that the child live with the mother. In relation to his time with the child, the father then sought an order that for the first three months after the order was made the child spend two to three hours each Saturday at a nominated but unspecified contact centre with the father, thereafter, for the next three months the child spend 9 am to 4 pm each Saturday with him, and thereafter the child spend time with the father on a fortnightly basis in the first week from after school Friday to before school Monday and in the other week from after school Wednesday to before school Friday, plus for half school holidays and on special days.
The orders ultimately pressed by the father at the commencement of final submissions was that the mother have sole parental responsibility, that the child live with her, and that there be no final determination of the question as to the time or communication the child might have with him, but there be an interim order that the child spend time with the father for one hour each Saturday at a nominated but unspecified contact centre and that after a period of three months from the initial contact a family report be requested to further assess contact between the father and son.
I will put aside for the moment the fact that such a family report would not be ordered. The purpose of a family report is to gain expert opinion evidence to assist the Court determining issues of fact that it must determine in the process of deciding contested parenting issues. It would not be the primary function of the family consultant to express a view as to further contact between the father and son, although there is nothing to stop the family consultant doing so if a family report was ordered.
The position of the mother at the outset was that she should have sole parental responsibility, the child should live with her and there should be no time spent or communication between the father and the child.
At the close of the evidence, counsel for the Independent Children's Lawyer submitted a minute of order proposing that the mother have sole parental responsibility, that the child live with the mother, and that the father be entitled to communicate with the child by writing letters and cards and forwarding the same to the mother without reference to the relationship of father/son between him and the child. The Independent Children's Lawyer also proposed that each party keep the other advised of their contact address, that the mother ensure that all communications received from the father are read to the child or by the child and that in the event the child expresses a wish to communicate with the father, the mother will facilitate the same occurring.
The position of the mother ultimately adopted was to support and, in effect, adopt the orders proposed by the Independent Children's Lawyer.
As a matter of procedural fairness at that point before hearing any final submissions I indicated that I would consider, nonetheless, an arrangement such as indicated in the mother’s response, that is, sole parental responsibility to the mother, the child live with the mother, and there be no communication or time spent between the father and the child, as another option.
There are a number of factual issues in the evidence between these parties. Ultimately I find that I am unable to resolve contested issues of fact between these parties because I do not accept either of them to be witnesses of truth.
The father entered Australia, and before that the United States of America, on a false passport. His honesty therefore must be called into question. There were other aspects of his evidence which I will not now further enumerate that also called his credit into doubt.
There are a number of aspects of the mother’s evidence which called her credit into doubt. For example, she made an extremely serious allegation in her affidavit evidence about a threat that she said the father made to her, namely, “I will kill your child by smashing his head into the ground even if he is 10 years old.” The mother had earlier in the same affidavit referred to the fact that another, although arguably not quite so graphic, threat in relation to the safety of the child had been made by the father to her mother. In cross‑examination the mother said that the threat that I have just quoted was not made to her, but made to her mother.
The evidence about these very serious threats, therefore, is entirely hearsay, albeit in these proceedings, being under Part VII of the Family Law Act 1975 and by virtue of Division 12A of Part VII, that hearsay evidence is admissible. But of course it is admissible subject to weight, and these are very serious allegations to make. There is no explanation why the mother did not call her mother, the child’s maternal grandmother, to give evidence of these very serious matters. She was clearly available because she accompanied the mother to Court. In fact, I had to exclude her from the courtroom yesterday after she called out an answer in Arabic to the mother to a question that the mother had been asked in cross‑examination. So, as I say, she was available, and there is no explanation as to why she was not called. In the circumstances, I draw the inevitable inference that her evidence would not assist the mother’s case.
The mother today sought and ultimately was granted leave to rely upon a further affidavit in which she alleged in October this year she had a conversation with the subject child in which, bearing in mind that the child has never met the father and apparently had no knowledge of him as his father, she said to the child, “[X], you are [X] and this is [Mr Albert]. He is the father,” at which point the mother’s evidence was that the child prevented her going any further by saying, “No, no,” and bursting into tears and then running away into another room.
It is not suggested that the mother had a picture or any other representation of the father present at the time that she said to the child, “This is [Mr Albert].” The child had no knowledge of the father. It is suggested, in the mother’s evidence, that although the two eldest of three children to her first marriage were aware that [X] had a different father to them, that they had never told [X] that, that she had never told [X] that, and that he did not know that. It is inexplicable why the child would have reacted in the way that the mother alleges that he did, and she could not provide any explanation for it. She did not suggest, for example, that he was in the habit of bursting into tears upon meeting strangers. When the mother had this alleged conversation with [X] he was in his home with his mother. This incident I find to be so inherently improbably that I should not accept it.
There were other aspects of the mother’s evidence that caused me some concern. She had a tendency to prevaricate on difficult questions and I was not satisfied with some of her answers. On occasions she gave directly inconsistent answers or evidence and on at least one occasion sought to suggest that she could see no inconsistency in evidence that was plainly inconsistent.
As I say, for these reasons I find myself having difficulty accepting either of these parties as witnesses upon whom I can place any reliance and I do not do so. I therefore intend to rely upon agreed facts or facts in relation to which a party has not been successfully challenged in cross‑examination directly and for which there is some independent corroboration.
The father is 44, the mother is 36. They were both born in Lebanon. Despite his birth in Lebanon, the father asserted, and I am prepared to accept at least for present circumstances, that he was a Syrian citizen. He asserts that he renounced his Syrian citizenship in the 1980s. The father, it seems, spent 11 years in France during which he pressed unsuccessful claims for refugee status. He then used a false passport to travel via Mexico to the United States of America where he remained for about five years.
He then travelled to Australia on a return ticket with the same false passport. He entered Australia under a name in the passport which he said was his, even though the passport is false. I have no confidence as to what the father’s true identity may be. He has since changed the name by which he goes. It is not the one on which he entered Australia. He entered Australia in 1999 and, he says, immediately sought refugee status and cashed in his return ticket to America.
It would seem that he has had a number of claims to remain permanently in Australia. Other than suggesting he has sought refugee status, I am unaware of the basis or bases of these various claims. The inference seems to be that he has had a number of applications rejected by the Immigration Department. He has been at least once to the Refugee Review Tribunal that he refers to, and the inference is that he has challenged various administrative decisions through the court process, probably more than once. Most recently, he has sought the exercise by the Minister of a personal discretion residing in the Minster under the Migration Act to allow him to remain in Australia, and that was unsuccessful.
He challenged that decision in the courts, possibly the Federal Court, it seems unsuccessfully, and he has now again asked the Minister to exercise a personal discretion under the Migration Act. It would seem the father is nothing if not persistent.
But bearing in mind that he has spent now 22 years in two different countries pressing claims for asylum on the basis that he is a refugee and that he has been consistently unsuccessful, I proceed upon the basis that it is more likely than not that the father will not succeed in his attempts to remain in Australia and sooner or later he will be deported. That clearly raises a relevant consideration, namely the effect upon this child, who has never previously met him, of being introduced to him, as he seeks, only then to be separated from him again and perhaps in very short order.
There is another significant relevant fact and that is that when the mother was expecting this child, she had difficulties with her pregnancy. She was admitted to hospital. After having spent some days in the hospital, the father came to the hospital. There was an altercation it would seem. The basis of that is in dispute. The mother asserts that it was because the father wanted her to secure an abortion which she would not agree with. His version is that she provoked him by saying that she did not want him in her life any more.
On either view of it, what then followed is appalling. The father then struck the mother with the back of his hand, injuring her eye, causing swelling and bruising. I am not on the present evidence prepared to find he struck her more than once. As a result of this assault, the mother was only able to open her eye to a small extent for a period and she suffered blurred vision in the eye for a period. The father pleaded guilty to a charge of assault occasioning actual bodily harm and was put on a 12-month bond. At the same time an apprehended violence order was made for 12 months for the protection of the mother.
The terms of that apprehended violence order are not clear on the evidence before me. If they went no further than the terms of the bond, then they do not do what the father asserts they did, that is, to prevent him from contacting the mother directly or otherwise.
He knew that the mother was expecting and it would seem that when the mother was in hospital having been confined for the birth, the father made contact with the hospital to make inquiries. He subsequently has made efforts through third party intermediaries to open some discussion with the mother, he says, about spending time with her. The mother sought to suggest that he had never done so but, in fact, in cross‑examination admitted that he did, another matter adverse to her credit. The father ultimately instituted these proceedings last year.
In determining what order should be made, the child’s best interests are the paramount consideration. They fall to be determined by reference to the matters in section 60CC of the Family Law Act 1975 as are relevant. Those matters are to be determined having regard to the objects and principles set out in section 60B of the Act. Those objects are to ensure that children’s best interests are met by ensuring 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 protecting children from psychological or physical harm, from being subjected to or exposed to abuse, neglect or family violence, ensuring children receive adequate and proper parenting to help them achieve their full potential and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together, and that 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, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that parents should agree about future parenting of their children and that children have a right to enjoy their culture. All of those principles are subject to the qualification, “except when it is or would be contrary to a child’s best interest.”
I also need to acknowledge the provisions of section 61DA, and via section 61DA if the presumption of equal shared parental responsibility applies or if otherwise the Court were to make an equal shared parental responsibility order, the provisions of section 65DAA. It is common ground in this matter that there should be a sole parental responsibility order in favour of the mother. The family violence being the father’s assault upon the mother whilst she was in hospital with complications in the pregnancy with the subject child clearly falls within subsection (2) of section 61DA, and mean the rebuttable presumption does not arise.
I turn then to the primary considerations under section 60CC. So far as the benefit to the child of a meaningful relationship with both of the child’s parents is concerned, prima facie, one would proceed upon the basis that other things being equal, it will be of benefit to this child to be able to develop a meaningful relationship with both parents, not just his mother. He has never met his father. He does not even know who he real father is. He believes that the mother’s ex-husband, the father of her eldest three children, is his father. This was something never disclosed by the mother in her evidence-in-chief. Why was never explained. However, the matter proceeded upon the basis that that evidence was true. It was not challenged in further cross-examination or in submissions, and in the circumstances I will proceed upon the basis that it has been accepted as correct.
The question though, as I say, is the benefit to this child of having a meaningful relationship with both parents. The relationship must be meaningful in a positive sense, not a negative one, for it to be beneficial. The difficulty here, of course, is that there is a risk to this child of providing an opportunity of a development of a relationship between him and his father. Certainly the father at the moment proposes supervised time, which would be some guarantee of the child’s safety from family violence, but, of course, it would not be an absolute guarantee of the child’s safety.
Whilst the father consistently professed remorse for his attack upon the mother in the hospital, the fact remains that he sought to suggest that he was provoked sufficient to warrant a physical attack upon the mother. That provocation was simply the mother telling him that she wanted him out of her life. If that is all it takes to provoke the father to violence, then there must be concerns about the safety of this child with the father.
That, of course, leads into the second of the primary considerations, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Although there is no evidence of the father otherwise having come under notice for violence in Australia, as I say, I find most troubling the father’s explanation for his violent actions on this occasion, namely, provocation by the mother merely telling him the she wanted him out of her life.
The other question mark that arises in relation to the benefit to the child of a meaningful relationship with the father, of course, is that for the child to benefit and have a meaningful relationship there must be consistent and persistent involvement. There is a real risk in this case, as I have already said, that this man will be deported from Australia. When I cannot say. It may be sooner, it may be later, but, of course, to have the child commence the relationship, only then to have it cease, at least so far as any face-to-face time is concerned, causes me to have serious doubts as to whether this would actually be a benefit to the child. It may in fact be a significant detriment. I will consider this further when considering the effects of change.
There is no evidence in relation to any relevant view of the child. There is no issue arising in relation to the child’s relationship with the mother, she being the unchallenged primary carer of the child from birth and continuing into the indefinite future. The child has no relationship with the father, the child never having met him. There are other relevant relationships for this child, however. I infer that he has a good relationship with his three half siblings.

The precise nature of the child’s relationship with his half sibling’s father is not entirely clear. The mother suggests that the child regards him as his father, but whether it is desirable that he do so is entirely another matter. This man would seem to have a propensity for crime. He has been in gaol a number of times and currently is in gaol. I am concerned also that the mother was not honest in her evidence when she suggested that he had never threatened her. In fact, that statement is directly contradicted by police records from 2004 that report the mother saying that she was threatened by this man when he was about to be released from gaol, that he attempted to extort money from her and that she was fearful of him.
Her categoric statement that he had never, ever threatened her is therefore directly contradicted by that record and I do not accept her denial. I am satisfied that she has been threatened by this man, that she has been fearful of him and that he is a quite undesirable influence upon the subject child. Nonetheless, the child regards him as his father. It would seem that this man, when he is at liberty, attends the mother's home reasonably regularly to visit all four children. The mother at one stage said he comes around everyday. Elsewhere she said he comes round every week or fortnight. What the truth may be, I cannot determine other than to say that it would seem he is a regular presence, although the mother has been divorced from him for many years now, in the life of all four children.
So far as the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent, I accept the submission by the Independent Children's Lawyer that the mother has simply no commitment to any relationship between the child and the father at all. I am satisfied she has sought to block any prospect of any such relationship and I infer that it is far more likely than not that she will continue to do so in the future.
That to my mind, without in any way condoning it, is a significant matter that I need to take into account in assessing the practicality of the orders that I am ultimately asked to make by the Independent Children's Lawyer and the mother, bearing in mind that they rely entirely, other than the parental responsibility and live with provisions, upon the mother’s cooperation. On what I have seen, it is highly unlikely that that cooperation would be forthcoming.
The effect of change on the child’s circumstances, in my view, is the most significant factor in this particular case. If in fact the orders that the father seeks are made and an order is made facilitating the child’s direct involvement with the father, the child will clearly have to be told that the person he believes is his father is not in fact his father and that somebody else is. That must have some emotional impact upon the child. It will immediately place some difference between himself and his siblings. It will also potentially place some issue in relation to the mother’s ex-husband’s involvement with this family, whatever it may be, and despite the undesirable aspects of that involvement that I have already referred to, it will clearly turn this little boy’s world upside down.
On the one hand, of course, there is what I am prepared to regard as prima facie a right for any child to know their parental heritage. The Court, in my view, should be very reluctant to make orders that would preclude the child in an appropriate fashion knowing his parental heritage. As I understand it, the orders proposed by the Independent Children's Lawyer and supported by the mother are put on that basis, that is, to provide an appropriate possibility, and no more than that, that the child in the child’s own time and at the child’s own instigation may have a means of determining his true paternity.
It, of course, is contingent upon the mother cooperating by ensuring that the child receives cards and letters from the father and has them accurately read to him or given to him to read when he is old enough. It also requires the mother, in the event of the child expressing a wish to communicate with the father, to facilitate him doing so. It further presupposes that it is possible to do so, bearing in mind the real risk that I have identified of the father’s deportation from Australia. Although there is a suggestion that the parties keep each other informed of their contact details, if the father is deported, then his circumstances, wherever he may be deported to, cannot presently be known and whether he is able at that point to have communication with the child would be unknowable.
Therefore, what I am asked to do is to make an order that, provided there is cooperation from the mother, cooperation that I am not satisfied exists, affords an opportunity, if the child asks for it, for him possibly to make contact at some indefinite point in the future with the father. But, on the other hand, of course, the order that is proposed would remove the risk of a rift being placed between this child and his siblings because, at this stage at least, he is not to be told that the person writing to him is his father.
I do not understand the relevance to a five-year-old of receiving written communications and expressions of good will and good wishes from a total stranger who has no identifiable connection with him. In my view, that is likely to cause more consternation to the child than anything else. Also negatively, and perhaps this is even more likely, it will simply engender indifference, disinterest and boredom. Why on earth would he be interested in a total stranger’s written communications at age five, or even six or seven or eight?
The alternative, of course, that the father proposes is that the child actually be directly introduced to him. That would require the child being told about his true paternity and it would require that the child, in circumstances where I am not satisfied that the mother will be supportive of the relationship between the child and the father, having to then deal with issues that may arise in the distinction that then would be drawn by reason of his different parentage between himself and his siblings. I am also concerned of the stress that that would engender in the household of which he is a member.
It would, of course, provide an opportunity for the child to meet his father. I have already said that I am satisfied the child has no relationship with his father and that is one of the reasons why I simply treat the mother’s evidence in the affidavit filed today as inherently improbable. He has no knowledge of this man. Why would he react in any distressed way to the issue of a stranger being raised with him, not even to the point of being told that the person is “his” father, just “the” father? Under the father's proposed orders, provided there is an appropriate means of introduction, there would be an opportunity for the child to start to know who this man is as a person and to realise the parent/child connection.
I am prepared to proceed upon the basis that the risks to the child of any repetition of violence by the father in the controlled environment of a contact centre are low, but, of course, the orders proposed by the father do entail a continuation of these proceedings. Why the father did not seek such an order at the outset has not been explained. But ultimately the decision I must make is one by reference to the child’s best interests, and if an interim order is what will best promote the child’s best interests, so be it, whether the father could have flagged such an option much earlier or not.
What the father proposes, as I say, is that after he has spent supervised time with the child for three months – and the formulation of that order would address the concerns of the Independent Children's Lawyer about the delays in accessing contact services – there be a family report and again, even if that is identified as being a family report addressing the relationship as it might then stand between the father and the child, I frankly cannot see the benefit that would be gained from that report.
Even assuming in the father’s favour that at that stage, after a very limited number of one hours visits, the child had started to react positively to the father’s presence, it is most unlikely that by then there would be a warm, deep and enduring father/child relationship developed in that period of time. Whether the child would have commenced to recognise him as a father figure, again would be highly doubtful and unlikely. The best that might be achieved is that it might be seen perhaps in the way that a child might see a male relative in the extended family.
At that point, of course, the father would be seeking to press on and to seek further time with the child, all the time aiming to continue the development of relationship with the child, not knowing, of course, at what point he may be required to leave Australia. And that, to my mind, is the real concern in this case. Where the father has been here for
11 years, and before with the interlude in America another 11 years in France, and he has consistently failed in his claims for asylum over those 22 years, I am concerned as to what it would do to this little boy to start this process and to progress it to whatever point it might reach only then for the father to be sent overseas.
It was suggested on behalf of the father that however embryonic the relationship might be, it could be continued by means of communication rather than spending time between the father and the child in different countries. As I have already said, the father’s circumstances, if and when he is deported, in whatever country he might end up in is unknown and unknowable. It cannot be stated with certainty that he will be in a facility or in circumstances where he will, for example, have access to ready electronic communication.
I am prepared to proceed upon the basis that he may have access to mail, but to start the process for this child to develop the relationship only then to have it pulled out from under him, in my view, does not advance the interests of this child and it does not provide a benefit to the child, and that is what the first of the primary considerations speak of. It is for these reasons that I am not satisfied that the orders that the father seeks are in the child’s best interest and I am not prepared to make them. It is also for these reasons that I am not satisfied that the orders proposed by the Independent Children's Lawyer and supported by the mother for written communications are in the child’s best interests.
I accept that the Independent Children's Lawyer has sought to find some means of providing a way in the future for this child, perhaps not until he is an adult, to know that he had a father who wanted a relationship with him. But bearing in mind the findings I make in relation to the mother, and where this will stand or fall solely on the mother’s cooperation, I am not satisfied that it is a reasonable expectation that it will work. I accept, as I have said, the submissions on behalf of the Independent Children's Lawyer that the mother will not facilitate the relationship. On that basis I am not satisfied that she will facilitate the requirements of her under the orders that are proposed. At that point the orders proposed by the Independent Children's Lawyer would seem to be an entirely empty gesture.
If it is suggested that if the child eventually seeks out the father and finds him, the existence of some documentation the father could produce to the child to prove that he wanted a relationship with his child would be beneficial, he has it in the documents in these proceedings. In my view, that is about as good as the Court can devise at the present time, accepting the situation as it exists. As I have already acknowledged, it is a very extreme step for the Court to be making an order which will deny this child, for all intents and purposes, an opportunity to know his father, but for the reasons that I have given, in this particular case I am satisfied this is one of those rare cases where that is what is in this child’s best interests.
If, of course, the father ultimately succeeds in his efforts to remain permanently in Australia, that would clearly be a significant changed circumstances sufficient to meet the requirements of Rice & Asplund and he could at that point renew his application to spend time with and to develop a relationship with his son. But because of my findings that this is not particularly likely, I am satisfied that the orders that I should make are as originally proposed by the mother.
In relation to the formulation of the order referring to the father spending time and communicating with the child, it is not an order that there shall be no communication and that he shall not spend time. I am simply saying that at the present time I am not satisfied because of the uncertainties about the father's future and because of the mother's opposition to a relationship between the father and the child, that an order can be framed that is in the child’s best interests.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate:

Date: 15 February 2011