DANDACHI & NAHYAN

[2012] FamCA 806

FAMILY COURT OF AUSTRALIA

DANDACHI & NAHYAN [2012] FamCA 806

FAMILY LAW – CHILDREN – Final Orders made in the absence of a party – Mother raised concerns for her safety and was absent from the jurisdiction at time of hearing – No order made as to time between mother and child – Children to live with the father – Father to have sole parental responsibility for the children – Children’s names to be placed on the airport watch list

Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422

Family Law Act 1975 (Cth)

APPLICANT: Mr Dandachi

RESPONDENT: Ms Nahyan

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 2493 of 2011

DATE DELIVERED: 30 July 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Conte-Mills

SOLICITOR FOR THE APPLICANT:

Mr Amos

Adams & Partners

SOLICITOR FOR THE RESPONDENT: Ms Nahyan

SOLICITOR AS INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

1. It is noted that the mother has been called outside the courtroom at 10.05 am this morning and there is no appearance by her.

2. That leave is granted to the mother’s counsel and solicitor to withdraw from these proceedings.

3. It is noted that Mr Adamson shall file a Notice of Ceasing to Act within seven (7) days.

4. That all previous and existing orders relating to the children R born … January 2008 and B born … June 2009 shall be and are hereby discharged.

5. That the father shall have sole parental responsibility for the subject children.

6. That the subject children shall live with the father.

7. That the applicant, Mr Dandachi,  and respondent, Ms Nahyan, by themselves, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children R a female born … January 2008 and B a female born … June 2009 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 said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia  and maintain the children’s names on the Watch List until the Court orders its removal.

8. That the Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

9. It is noted that, provided the mother informs the father and keeps him informed as to her contact and communication details, the father will thereafter use his best endeavours to keep the mother advised as to the children’s welfare and progress and any change to the residential address of the children.

10. That Dr K report dated 20 June 2012 shall become Exhibit 1 in today’s proceedings.

11. That all applications and cross applications be and are hereby dismissed.

12. That all issues be removed from the Active Pending Cases List.

13. That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dandachi & Nahyan 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 PARRAMATTA

FILE NUMBER: PAC 2493 of 2011

Mr Dandachi

Applicant Father

And

Ms Nahyan

Respondent Mother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the future living arrangements for the parties’ two children, R, born in January 2008, and B, born in June 2009.  The matter has a lengthy history in this Court, to which I will make some reference shortly. 

2. The matter is listed today as the first day of a hearing set for five days. 

3. On Friday last, contact was made to the Court by the legal representatives of the mother initially seeking that a safety plan be put in place.  Subsequently, at approximately 2.15 pm, an application was brought to my attention whereby the legal representatives of the mother sought that the mother attend and participate in the final hearing by some form of electronic communication from outside the Commonwealth of Australia.  I was able to contact the mother’s solicitor by telephone.  After hearing briefly from him, and reading the material relied upon in relation to the application to attend by electronic communication, I refused that application. 

4. The matter was called for hearing today at 10.00 am.  The legal representatives of the father and the Independent Children’s Lawyer appeared.  The father was in attendance.  The mother’s legal representatives appeared, but there was no appearance by the mother.  Her name was then called outside the Court.  She did not answer that call.

5. Her legal representatives then sought, and were granted, leave to withdraw from the proceedings.  The matter then proceeded in the mother’s absence. 

6. The father’s Counsel produced a minute of order and that minute was embraced by the Independent Children's Lawyer.  Effectively, as between the father and the Independent Children's Lawyer, there is no argument as to what should occur.  However, the mother has taken no part in those discussions, nor has she any knowledge of them.

7. Notwithstanding that state of affairs, I do propose to proceed to deliver Judgment and make final orders in this matter.  I note, for what it is worth, that there was no application made on behalf of the mother that the proceedings should be adjourned from today to a future date. 

Background

1. A brief background to the matter can be seen as follows:-

   ·The father was born in 1982 in Australia. 

   ·The mother was born in 1984 in Western Asia, and subsequently came to Australia. 

   ·The parties married in an Islamic ceremony in mid 2006.  That marriage was not recognised, nor was it sought to be recognised, under Australian law.

   ·The parties commenced cohabitation at about that time, that is mid 2006. 

   ·There were two children of the marriage to whom I have already made reference:- R, who is currently four and a half years of age, and B, who is currently three years of age. 

   ·The parties eventually separated in or about December 2010.

   ·Their Islamic religious marriage was subsequently dissolved, and the parties were divorced, according to the tenets of the Islamic faith. 

   ·As I understand it, the mother has remarried, again within the tenets of that faith.  On 1 February 2012 she gave birth to a child, D.  The father of that child is Mr G, who is not currently in Australia.

The parties’ documents

1. The documents the parties relied upon were somewhat extensive.  The father had commenced these proceedings by an Initiating Application filed on 3 June 2011, which was amended by the filing of a further application on 11 July 2011.  The mother had filed a Response, which she appeared to rely upon, on 27 July 2011. 

2. The father had sworn an affidavit of 23 August 2011, filed on 24 August 2011.  In practice direction documents, the father indicated to me there was a further affidavit of 27 July 2012.  At the time of delivery of this Judgment, my inquiries indicate that that affidavit has not been filed.

3. The mother filed a number of affidavits in this matter.  The first of those was of 6 July 2011, filed 27 July.  The next was sworn 26 August, filed 29 August 2011.  A third was sworn on 13 December 2011 and filed in Court on 14 December 2011, and finally, an affidavit of 11 July 2012, filed 20 July 2012. 

4. That was the material before me in the hearing. 

Further history

1. From that material, a quite detailed history of that which occurred in the parties’ marriage may be gleaned.  I am satisfied that a comprehensive history is as follows:-  The parties commenced a relationship some time in about May 2006.  The parties married, as I have said, in about mid 2006 by undergoing an Islamic religious ceremony.

2. There were then difficulties, the father asserts, between the mother and her mother shortly after that marriage.  The father asserts that from September 2006 onwards the mother commenced to follow what he described as an extreme path of Islam.  The mother asserts that in about December 2007 she was assaulted by the father.  It is clear that in January 2008 the parties’ first child was born.  In June 2009, their second child was born.  It is clear that some time after that the maternal grandmother died, and it is the father’s assertion that it was some 12 months after her mother’s death before the mother became aware of that fact.

3. Certainly, between January 2010 and March 2010 the mother travelled to Western Asia.  In about September 2010 the father says the mother found out about the maternal grandmother’s death, and this had an adverse effect upon her. 

4. In about December 2010 the parties separated and divorced.  The children remained living with the mother following separation.  In about December 2010 or January 2011 there were proceedings commenced at the instigation of the mother against the father as to allegations of an assault, and for an Apprehended Violence order for the mother’s protection.  The mother apparently did not appear in Court when the matter or matters were before the Court and those matters were subsequently dismissed. 

5. The father asserts that for a period from the end of 2010 until April 2011 there was no contact between the parties.  In about March or April 2011 the father commenced to see the children. 

6. In about mid April 2011 it is asserted the mother met her second husband, Mr G, whom she married, again according to the rights of the Islamic faith, approximately two weeks later. 

7. This matter seems to have come to a head on 15 May 2011.  On that day there was a confrontation between the mother and her new husband on the one side, and the father on the other.  Allegations are made that the father was armed with a weapon.  It is clear that Mr G fired a number of shots, at least three of which struck the husband, injuring him badly.  The father was taken to hospital.

8. That same night Mr G left the country to fly to the Middle East via Dubai. 

9. It is asserted that police attempted to speak to the mother but she was not cooperative.  Certainly, the police made several such efforts, but on each occasion, the mother put them off.

10. Following that incident, the children then came to be with the father and his family.  The mother, as I understand it, endeavoured to leave the country on 17 May 2011.  She was arrested at the airport.  She was initially charged with a serious criminal offence, and she was held without bail for approximately three weeks.  On 9 June 2011 she was released on bail.  There were then interim Orders made by consent on 18 July 2011 by a Registrar of this Court. 

11. On 23 August 2011, the father filed his affidavit material, and at that time he was living with the paternal grandmother in a five bedroom house.  There were two of his siblings living at that residence.  The subject children lived with him at that residence. 

12. On 12 October 2011, I made further interim Consent Orders.  I will return to these shortly in these reasons for Judgment.   

13. In February 2012, the matter was stood over for the appointment of a Chapter 15 expert.  By that time, the mother had been dealt with in relation to the criminal matters.  On 6 December 2011 she had pleaded guilty and was convicted of concealing a serious indictable offence.

14. As I understand it, she then entered into a 12 month good behaviour bond, which included conditions for her to take prescribed medication and attend for counselling and treatment as nominated by Dr J.  The mother continued to see the children at a contact centre. 

15. It appears uncontroverted that the mother left the country on 21 April 2012 and has not returned to Australia.  It follows from that, that the children have not seen their mother since that time.

16. On 20 June 2012, Dr K prepared an expert report in these proceedings, and that document was released to the legal representatives of the parties. 

17. On 18 July 2012, the matter was before me.  The mother was represented by Counsel on that occasion, and I was not told that there were any difficulties with the mother participating in the hearing fixed to commence today. 

Court Orders

1. There have been a significant number of Orders made in this matter.

2. The first of those Orders of importance were the interim Orders made by consent by a Registrar on 18 July 2011.

3. The next were the further interim Consent Orders made by myself on 12 October 2011.  Those Orders provided for the children were to live with the father, for the children to spend time with the mother in a supervised situation at E Contact Centre and the children’s names to be placed on the airport watch list.

4. On 3 November 2011, the matter was again before me, but was stood over to await the outcome of the mother’s criminal proceedings.  As I say, it was on 6 December 2011 that the mother’s criminal proceedings were completed, and on 14 December 2011 the matter was set down for hearing commencing today.  At that stage, there was no indication whatsoever by or on behalf of the mother, who was present in Court that day, that there would be any difficulty in her attending and participating in this hearing. 

5. On 22 February 2012, Consent Orders were made for the appointment of Dr K as the Court’s expert.

6. This then is an overview of the important facts in this matter.

The current situation

1. The situation is that the children have lived with their father since his release from hospital, following the incident of the 15 May 2011.  The mother has seen the children for periods of time in accordance with the Orders made for supervised time.  However, it must follow that since the 21^st of April this year, the mother has not seen the children because she has travelled overseas and chosen to remain overseas.  Notwithstanding that, it has been put to me on behalf of the father that he recognises that the mother does have a relationship with the children, and that this relationship, if she returns to Australia, should be fostered.

2. The situation therefore, as it stands today, is that the mother for whatever reason – and it must be noted that she says she has fears for her safety – has not participated in this present defended hearing. 

3. The difficulty I have is that since December of last year, including the mention on 18 July 2012 specifically to ascertain the readiness of this matter for hearing, issues of the mother’s fears for her safety were never raised or ventilated before me.  The issue of safety only came to my knowledge as a specific issue firstly on Friday last when there was an application for a safety plan to be prepared, and then an application for the mother to participate electronically was made, that afternoon, and subsequently refused.

4. I turn then to the law to be applied.

The law to be applied

1. In this matter, of course being a parenting matter, it is important that the relevant sections of the Family Law Act 1975 (Cth) be considered and taken into account. The first of those relevant sections, as I would see them, are the provisions of section 60CC(2), which sets out the primary considerations that I must take into account. The first of those is that the children should have a meaningful relationship with each parent, but balanced against that is the need for the safety of the children to be protected against any risk of harm.

2. These proceedings were pending as at 7 June 2012 and accordingly, the family violence amendments to the Act do not have application. 

3. What is intended by the expression “meaningful relationship” (as referred to in section 60CC(2)) is somewhat incapable of precise definition.  It is something that takes into account that which can be done and that which preferably might be done if this were a perfect world. 

4. The situation here is that for the time being and the foreseeable future there will be no relationship with the mother of any face-to-face kind, because the mother herself has chosen to absent herself from the jurisdiction.  She has chosen not to participate in these proceedings.  

5. The need to protect the children is, to my mind, however, still important.  It is clear that the mother and the children have a relationship, which I will return to later in these reasons for Judgment.  However, so far as I am concerned, the mother’s actions, apart from anything else in choosing not to appear today, cause me concern as to what might occur in the future.

6. Certainly, one of the major reasons why the mother was required to have supervised time was a fear of flight.  So far as I am concerned, if the mother were in some way to take the children away from the father that would of itself cause the children grave difficulties. 

7. I turn then to the provisions of section 60CC(3) to deal with the matters that might assist me in reaching a resolution as to how these two primary considerations are to be balanced. 

8. There is no real evidence before me of the children’s views, let alone any factors underlying them (subparagraph (a)).  I am satisfied from Dr K’s report that the children were comfortable when seen with both parents.  I am not satisfied that there are any views expressed by these children, apart from anything else because of their ages, four and a half and three years old, that would be determinative in this matter.

9. I then turn to the nature of the relationship between the children and their father (subparagraph (b)).  It is clear from Dr K’s report that, and I quote here from page 13 commencing at line 440 “(b)oth children seem to have a strong attachment to him and his family appears stable.”

10. I am satisfied that the relationship the father has with the children provides them with comfort, security and love. 

11. So far as the mother’s relationship with the children is concerned, I am satisfied that I can accept from Dr K’s report at page 14, line 482 that the children did have a strong attachment to her.  He then goes on to say this:- “I believe that she, the mother, was caught between the cultural imperatives of arranged marriages, quickly forming a relationship and marrying.”

12. Doctor goes on to say on that same page at line 501 “I formed the view that there was no reason to suggest that she wasn’t capable of caring for the children.  However, she was somewhat vulnerable and wanted to have security.”

13. Doctor concluded that part of his report with these comments:-

    Her ability to cope as a single mother without support and be torn is extremely difficult for her.  She appears unable to prioritise her children above her dramatically complicated life and dilemmas.

14. I take into account the manner in which each parent has facilitated the inclusion of the other parent in the children’s lives (subparagraph (c)).  The father, to his credit, has at all times, continuing until today, indicated that he believes the mother should, if at all possible, have an ongoing relationship with the children.  Subject to his concerns for the mother perhaps attempting to remove the children from the Commonwealth, I am satisfied that his attitude in this regard is one that does him credit.  The mother sought that she have the children live with her and that she have sole parental responsibility.  However, her attitude to the manner in which she might view the father’s ongoing relationship with the children, were she to be their primary carer, is untested.

15. I turn then to the practical difficulties of contact (subparagraph (e)).  At this stage there is simply no prospect of contact because of the mother’s absence from the jurisdiction.  I would not for one moment believe that the father, notwithstanding what appears to be some generosity in his attitude to the mother seeing the children, would consider for a moment that the children might leave the Commonwealth of Australia to see the mother.  The mother seeing the children and having put in place orders to that effect, to my mind, is dependent largely, if not solely, upon her returning to Australia.  I will return again to the issue of what orders should be made about the mother seeing the children later in these reasons for Judgment. 

1. I take into account the attitude to the children and the responsibilities of parenthood (subparagraph (i)) together with the capacity of each parent to care for the needs of the children (subparagraph (f)).  The father has clearly established that he can care for the children since they have come to live with him.  Indeed, it is the recommendation of Dr K that the children, on balance, should possibly remain in the care of the father, who appears to be caring for them adequately.  It is a situation of some difficulty.  However, I believe that the father has demonstrated both an appropriate attitude and a capacity to care for the children, albeit, I am satisfied, with some assistance from members of his family. 

2. It is equally clear that until separation the mother was the primary carer for these children.  I am satisfied that were she to return to Australia and establish a regime that was one where the children could be properly protected, it would be entirely appropriate for her to have ongoing and significant time with the children.  Dr K reports at line 575 that “(s)hould the children be able to have regular contact with the mother in a substantial way, I believe they would thrive with the contact with the mother.”  To my mind, that is a matter that now lies with the mother. 

3. There have been allegations of assault raised in this matter, but I am not aware of any convictions as against either the mother or father for any offences of family violence involving the parties and the children (subparagraph (j)). 

4. The next matter that I believe I have to consider is section 61DA.  Section 61DA says that when considering making a parenting order there is a presumption of equal shared parental responsibility.  That presumption may be found not to apply in the event of family violence.  I am not satisfied that there is evidence before me that is capable of elevating family violence to the extent that I believe is necessary to find that the presumption does not apply.

5. However, subsection (4) of section 61DA makes it clear that the totality of the evidence may indicate that is not in the best interests of the children for there to be equal shared parental responsibility and thereby the presumption may be rebutted.  In this case, looking at the totality of the evidence as it presently stands, it would, to my mind, be something of a nonsense to endeavour to make an order for the parties to discharge the duties imposed upon them of equal shared parental responsibility.  Again, I lay the blame for this squarely at the feet of the mother.  I am also aware, of course, that both parties in the applications that they have proposed do not seek equal shared parental responsibility, but rather that each of them have sole parental responsibility. 

6. The practicality of the situation as it presently confronts me would indicate that the only person in whom parental responsibility can be reposed at this time is the father, and accordingly, I propose to order that he henceforth have sole parental responsibility for the children. 

7. I am satisfied that I must then turn to section 65DAA, which starts by telling me that when an order for equal shared parental responsibility is made, there must be consideration given to the parents spending equal time with the children.  It was made clear by their Honours in Goode & Goode[1] that if there were no finding for equal shared parental responsibility, it was still necessary in the best interests of the children to consider whether equal time would be appropriate.

   [1] [2006] FamCA 1346, (2006) FLC 93-286, (2007) 26 Fam LR 422

8. Once again, as a matter of practicality, apart from any other consideration, there can be no suggestion of the children having equal time with their mother and father.  Even if the mother were present in the jurisdiction, the material that I have referred to, particularly in Dr K’s report, would indicate to me that the mother should spend time with the children but not equal time. 

9. Section 65DAA(2) then talks about significant and substantial time in the event of no finding being made for equal time.  Again, in this situation, I repeat to the point of boredom, the mother is not participating in these proceedings; that is by her own choice.  For me to make any order at this time for her to have time with the children would be, in my view, nonsensical.

10. I am satisfied the father, as I have already indicated, has been quite generous in his acceptance and recognition of the relationship of the children with their mother and the role she has played, and has indicated that some time should be available.  I raised with the legal representatives of both the father and the Independent Children’s Lawyer whether or not I should make an order that there be no time with the mother as long as the present situation of her remaining overseas continues, or whether I should simply remain silent on the issue.  I have been persuaded that I should remain silent on the issue.  That is, that I should not make a positive order that the mother spend no time with the children.

11. Of course it is entirely possible, in the absence of any order and the father having sole parental responsibility for the children, if he chose to do so, he and the mother could come to some arrangement about the mother seeing the children without the need for a Court order.  That is, of course, a matter for him.

12. If, however, the mother were to return to Australia and seek orders, then, in my view, it would be appropriate for her to file a fresh application for such orders.  She will have to establish that, at that time, it is in the best interests of the children to have orders made in her favour.  It may be that it would be less onerous for her to do so if no order were made as opposed to an order being made against her that she not spend time with the children.  It seems to me that that is what the father and the Independent Children’s Lawyer both propose and accordingly, I shall make no order preventing the mother spending time with the children, but leave it either to the father and mother to reach an agreement, or for further applications to be made to this Court.

13. Those are the matters that I believe I must consider in reaching a determination.  To my mind, as the matter presently stands, the outcome is absolutely clear cut.  The children are to remain with their father, and accordingly, he must have sole parental responsibility.  So there is no misunderstanding, I propose to make an order that the children live with him. 

14. There have been a number of matters proposed by the father and not objected to in any form by the Independent Children’s Lawyer.  A notation sought that, provided the mother discloses her whereabouts, the father is to keep her involved by means of informing her of the whereabouts of the children, how they are going at school when appropriate, any medical conditions which may afflict the children, and generally reporting to the mother as to the welfare and wellbeing of her children.

15. I had given some consideration as to whether or not the orders I make should be interim rather than final orders.  That was on the basis that the mother might return and seek orders that would put her back in touch with her children.  I have come to the conclusion, however, that this matter requires finality.  It is a matter where, given the situation that stands today, the end result is inevitable.  If the mother wishes to change that result, then, in my view, she must put, if she wishes to obtain Court orders, proper evidence before the Court explaining a number of factors and certainly setting out with some precision what her proposals for the children are to be in the future. 

16. It is put to me that I should maintain the children on the airport watch list.  With respect, I agree.  I am concerned that if I take them off the watch list that the mother has the potential to return to Australia and seek to remove the children.

17. Of course, the father is aware that in the event that he seeks to take the children overseas for any purpose whatsoever, he will have to approach to Court to have that Order varied so that he can leave the country with the children for a period of time and preferably for a specified purpose.  It is put to me that I might achieve the end result in this case by leaving some existing Orders in force and discharging others.  With great respect, I think in this case what is appropriate and proper is that I discharge all existing Orders and start afresh.

18. I will make orders for the children to be placed on the appropriate airport watch list and orders for the Australian Federal Police to assist in implementing that order. 

19. I note that provided the mother informs the father and keeps him informed as to her contact and communication details, the father will thereafter use his best endeavours to keep the mother advised as to the children’s welfare and progress and any change to the residential address of the children. 

20. I will otherwise dismiss all outstanding applications and cross-applications, and remove all issues from the pending cases list.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 30 July 2012.

Legal Associate:      

Date:    21 September 2012