Bagheri and Goudarzi

[2015] FamCA 1209

FAMILY COURT OF AUSTRALIA

BAGHERI & GOUDARZI [2015] FamCA 1209

FAMILY LAW – PARENTING – Best interests – Application for recovery order – Where there are two children aged 15 and nine – Where parenting orders were made by consent in 2013 – Where the mother says that the consent orders made in 2013 were not in the best interests of the children – Where the mother did not make the children available to the father in accordance with the existing parenting orders – Application by the father for a recovery order – Where it is not in the best interests of the children to issue a recovery order – Orders made that the children be presented by an Independent Children’s Lawyer.

APPLICANT: Mr Bagheri

RESPONDENT: Ms Goudarzi

FILE NUMBER: SYC 7646 of 2008

DATE DELIVERED: 24 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 24 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE APPLICANT: Barkus Doolan

RESPONDENT: Ms Goudarzi appeared in person

Orders

1. The proceedings are adjourned to 10.00 am on 18 February 2016.

1. The Court notes that the orders of 23 April 2014 in relation to the children continue in effect.

1. The children, D born … 2000 and E born … 2006 be represented.

1. The Court requests Legal Aid NSW to make arrangements for that representation as soon as practicable.

1. The parties provide copies to Legal Aid NSW as soon as practicable of all relevant applications, affidavits and other documents on which they seek to rely.

1. The parents facilitate the attendance of the children upon their representative at times, dates and places requested by the representative.

1. The mother file an Initiating Application to amend final parenting orders in the event that she seeks such an order within 28 days from today’s date.

1. Any Response to any such Application be filed and served within 21 days thereafter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bagheri & Goudarzi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC7646 of 2008

Mr Bagheri

Applicant

And

Ms Goudarzi

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, D who is 15 years of age and E who is nine (“the children”).  Orders were made by agreement on 23 April 2013 establishing a pattern whereby the children live mainly with the mother and spend unsupervised overnight time with the father.  It seems to be agreed that they were to spend time with him starting on 12 December just gone, for two weeks, and then some more time later in the holidays.

2. On 12 December 2015 the father received a text message from the mother to say that the children would not be coming to him and they were to come to him that day; that she had spoken to the police and she had spoken to the Department of Family and Community Services.

3. On 13 December 2015 there was a text message from the mother to the father, the gist of which was:

   The children are refusing to come with you.  I won’t force them to come, [E] is afraid of you shouting at them.  Neither of the children will speak to you without a third person being present, and they’re complaining about abuses and threats.

4. There were property proceedings between the parties, with a trial running through to 30 November 2015 and judgment reserved on that date. 

5. The wife has filed a scandalous document in which she accuses the father of all manner of evil, some things that do not seem to have any connection with parenting matters.  It appears that she has simply sought to blacken his name.  These are civil proceedings and there is no jury involved.  Those tactics are unsuccessful and reflect badly on her. 

6. The mother says that on 10 December 2015 E suffered intense abdominal pain and she took her to C Hospital.  She says that the hospital could not find a physical cause for the symptoms, but there was an opinion about the child suffering intense anxiety.  On 11 December 2015 there was a call to the mother from the Department of Family and Community Services in relation to E.  The mother says that in conversation with them and in a subsequent conversation with officers of the New South Wales Police she said that she was not going to send the children to the father.  I do not know that she puts it as highly as somebody from either agency supporting her in that view.  On the 12^th – the next day, she told the father by text message that the children would not be coming.

7. The mother says that on 20 December 2015 her home was vandalised, and she has suspicions about the father being involved.  The father has provided some evidence that he was interstate when these things happened.  That does not mollify the mother.

8. The father’s application is that a recovery order be made requiring the mother to deliver the children to him and authorising the authorities to cause that to happen.  He also seeks an amendment of the orders so that his two weeks with the children commence on Boxing Day. 

9. The first thing to say is that it is the mother’s case that she misled the court when she agreed to orders in 2013.  She says that she was told something by her lawyers which made her agree to orders that she did not then and has not since, thought were in the best interests of the children.  I have had a word to her about that.  The orders provide for a mechanism that the parties should use to resolve disputes.  On any view, that mechanism should have been applied by the mother because she was the one who formed the view that the orders should not be complied with.  She did not take it up. 

10. The father has made arrangements, I think, including a cousin or a relative of the children, for travel these holidays.  He booked into various events that the children would probably enjoy, including a football game and some other things.  Flights and things have been booked.  All of that has been wasted, and there was nothing he could do about it.  So on the face of it, the mother has behaved in an appalling fashion. 

11. The problem comes in that the orders relate to children.  The enforcement of orders is discretionary and in enforcing parenting orders, the discretion is exercised by reference to the best interests of the children.  In my view, it would not be in their best interests to be arrested by the police.  It is obvious that there are issues, particularly in relation to a 15 year old boy.  The way we deal with these things is the way the parties have foreshadowed in their consent orders; although, those orders do not bind the Court, of course.  We need to see if there is a problem or not. 

12. When there has been such a distortion by the mother misleading a court into making orders that she never believed were in the best interests of the child – it throws the whole system out of phase.  It leaves open the father’s case that she is lying now rather than then and she did believe the orders were in the best interests of the children.  There is nothing really to suggest that in the two and a half years that have passed there were major problems.  It has all come to a head now.  That said, at any time of year, courts would be reluctant to have children arrested, but I am particularly reluctant to do it now.  There is more to be lost than gained in that process. 

13. The matter is complicated, of course, because we are reliant on the mother to some extent.  I do not think there is an application by the father that the children live with him.  So to some extent, if the mother’s judgment miscarries about things, I am still stuck with her to some extent. 

14. I have reminded the mother that she is obliged to comply with orders of the Court.  There have already been, I think, contravention proceedings in this case, and there may be future contravention proceedings.  That said, contravention proceedings are geared towards breaches of orders without a reasonable excuse and it will be the mother’s case that she had one. 

15. If the mother is faced with a 15 year old and a nine year old implacably opposed to a particular course, there is a problem.  I do not know of a situation where coercive orders have been made inconsistent with the wishes of a 15 year old child.  Now, if he is under an additional particular disability, perhaps, but there is no suggestion of that here.  E is in a different category, but, of course, there are two children and it pleased the parties to make similar arrangements for both children.  That was probably for a reason.  We will try and get to the bottom of all that but it takes time.  The armoury of things we can do really should be focused on the parents rather than on the children.   

16. If this was a BMW, there would be no problem.  We would just have it driven around to the father’s house.  But we are dealing with something more fragile than that.

17. I accept that the father was put in a terrible position.  He is not the one who wanted the orders changed.  He made arrangements, the financial cost is one thing, but he had made arrangements in accordance with Court orders, and he did not want the orders changed.  At the very last minute, he was told the orders would not be complied with and he was put to bringing the matter back to court when it should have been the mother.  That is very vexing.

18. Belatedly, the parties have activated the measures that are referred to in the orders of 2013.  Contact has been made with Mr F, who is a social scientist who works in private practice.  Appointments have been made with him, we think – for the mother and children on 21 January, the father on the 16^th.  I have indicated to the parties that I will put the matter over before me on 18 February.  Hopefully, the parties can sort something out with the assistance of Mr F.  He is very skilled. 

19. If that is not possible, I would not want to hold out hope that we can solve the problem immediately.  The first thing to be done would be appointing a lawyer for the children.  At 15, as an absolute minimum, the boy is entitled to take part in the proceedings through his representative.  He will have instructions to give to a representative, and although the representative does not only represent those instructions, we increasingly understand that children of this age are entitled to have a say.  I will adjourn these proceedings to my list at 10 am on 18 February 2016.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 24 December 2015

Associate: 

Date:  15 February 2016