Demir & Ozden
[2025] FedCFamC2F 80
•30 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Demir & Ozden [2025] FedCFamC2F 80
File number(s): DGC 827 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 30 January 2025 Catchwords: FAMILY LAW – PARENTING – final orders – 13 year old child – child has strong views of not wanting to see mother – mother seeks shared care arrangement between two states – mother has no insight into child’s needs – no time spent between mother and child since the child was 8 months old – not in the best interests of the child to spend any time or have any contact with the mother. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D, 102NA
Cases cited: Deiter v Deiter [2011] FamCAFC 82
Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2022] FedCFamC1A 97
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 88 Date of last submission/s: 7 November 2024 Date of hearing: 6 & 7 November 2024 Place: Dandenong Representative for the Applicant: The mother appearing in person Counsel for the Respondent: Ms Elleray Solicitor for the Respondent: Bardo Lawyers Counsel for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: VM Family Lawyers ORDERS
DGC 827 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DEMIR
Applicant
AND: MR OZDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
30 JANUARY 2025
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for decision making in relation to all major long-term issues for the child X born in 2011 (“X”).
2.X live with the father.
3.X shall not spend any time with and have no contact with the mother.
4.The father be at liberty to apply for an Australian citizenship and Australian passport for X without the mother’s consent or the need for the mother to sign any documents.
5.X be permitted to travel outside the Commonwealth of Australia without the permission of the mother.
6.All applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a parenting matter concerning one child, X (“X”) born in 2011, aged 13 years old.
X currently lives with her father, Mr Ozden (“the father”) and her stepmother, Ms B (“Ms B”) in Melbourne, Victoria.
The applicant mother, Ms Demir (“the mother”) lives in Queensland and has not spent any time or had any contact with X since she was eight months old.
The mother was self-represented, and it was somewhat difficult to establish the orders she sought. She initially wanted a change of residence such that X live with her in Queensland, however, by the end of the trial she was proposing a build-up of time such that X would live in a shared care arrangement, notwithstanding the parents live in different states.
The father proposed that he have sole parental responsibility for decision-making and that there be no time with the mother.
The orders sought by the father were ultimately supported by the Independent Children’s Lawyer (“the ICL”).
BACKGROUND
The parties were both born in Country C and met through a Country C matrimonial dating website in or about 2010. The parties married in Country C in 2010 and moved to City E in Country D for the father’s work.
The mother became pregnant and in 2011, she travelled to Australia where she had permanent residency, to give birth to the parties’ child, X.
The mother returned to the Country D with X within a short time after the birth.
In mid-2012, the father formed the view that the marriage was not sustainable. The parties separated in late 2012 and the father was granted a religious divorce at the end of that year.
In mid-2012, the father applied to the court in Country D for the equivalent of an airport watchlist order as he was seemingly concerned that the mother might try and remove X from the country.
In mid-2012 the mother attempted to take X to Country C and was stopped at the airport as a result of the watchlist order that was in place.
Shortly thereafter the mother went to Country C on her own, leaving X in the care of the father.
In early 2013, the father commenced proceedings in the Country D Court for the “custody” of X. The mother did not attend any of the hearings in that court. It appears from the evidence that the court was satisfied the mother had been served with the relevant documents, and ultimately, final orders were made in 2014 for X to live with the father and spend no time with the mother.
The mother did not participate in the above proceedings. Her reasons for this were inconsistent and unclear. I shall return to this shortly.
In late 2013 the mother moved back to Queensland, Australia. She re-partnered with Mr F (“Mr F”) and had a son with him who is currently aged 10 years old.
It appears that the mother’s relationship with Mr F broke down shortly thereafter and her son with Mr F remained in her care in Australia.
The father meanwhile remained in Country D with X. In 2013 he married his current wife, Ms B.
In 2017, the father and Ms B had a son G (“G”). G is currently seven years old.
In or about 2018, Ms B, X, and G moved to Melbourne. The father moved from Country D to be with them in 2019.
The mother says that in or about 2020 she discovered that the father was living in Australia and that she subsequently initiated mediation with respect to X. The parties attended that mediation, but no agreement was reached.
In March 2023 the mother initiated these proceedings seeking X be placed on the watchlist in Australia. In September 2023, the mother filed an amended application in this court for X to be placed in her care.
No interim orders have been made providing for the mother to spend time with X and the mother did not see her as part of the child impact report process.
DOCUMENTS RELIED UPON
The mother had not complied with the trial directions made on 5 July 2024 but was permitted to rely on an earlier affidavit filed on 14 March 2023. Although she had filed an amended application on 21 September 2023, she did not seek the orders set out in that document.
The father relied upon the following documents:
·his case outline filed 1 November 2024;
·his amended response for final orders filed 3 July 2024;
·his trial affidavit filed 8 October 2024;
·the affidavit of Ms B, filed 8 October 2024; and
·the child impact report dated 27 October 2023 (“the child impact report”) by court child expert Ms H (“Ms H”).
The ICL relied upon the following documents:
·the child impact report;
·the affidavit of Dr J (“Dr J”), psychiatrist, annexing the psychiatric report of the mother filed 4 July 2024.
In addition, the following exhibits were tendered in this matter:
·F1 – Queensland Legal Aid letter written on behalf of the mother to the father dated 12 January 2021;
·F2 – a section 60I certificate issued 5 March 2021;
·M1 – bundle of emails and attachments sent by the mother on 6 November 2024; and
·M2 – bundle of emails and attachments sent by the mother on 7 November 2024.
THE EVIDENCE
The matter was heard over two days commencing 6 November 2024 and conducted in-person at the Dandenong registry in Victoria, save for Ms H, who gave evidence via Microsoft Teams.
Although some of the evidence was therefore heard over Microsoft Teams, I am satisfied that this did not interfere with the fair conduct of the trial.
In terms of the evidence, I have taken into account the contents of each of the affidavits to the extent that they were referred to in cross-examination and submissions. It is not for the court to go through the evidence and construct arguments not otherwise put to the court or to determine how evidence, not referred to at trial, is applicable to the parties’ competing positions. The parties are bound by the manner in which their case was conducted.
Furthermore, I have not read any subpoenaed material, information provided by agencies such as the DFFH or police, or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits. As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
If a particular fact or issue is not mentioned in these reasons, it does not mean that I have failed to consider it. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to the balance of probabilities.
There was an order made pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”) by Her Honour Judge Howe on 5 July 2024 which prevented the parties from being able to personally cross-examine each other. The order contained a notation that as section 102NA applies in these proceedings, the mother was to do all things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme (“the scheme”) to enable her to be represented at trial.
The mother made an application to the scheme and was allocated three separate lots of solicitors. Two of the lawyers withdrew their representation and in the third case the mother told the scheme to remove them. As a result, the scheme was not prepared to provide the mother with a further solicitor to represent her at trial.
On the first day of trial the mother sought an adjournment. The mother was represented by a solicitor advocate for the purpose of that application only. For reasons given at the time, that adjournment request was refused. The solicitor advocate was excused, and the mother was thereafter self-represented for the duration of the trial.
Although the mother was not permitted to cross-examine the father due to the section 102NA order, she was able to cross-examine both Ms B and Ms H and make submissions to the court.
The mother’s evidence
The mother was a very difficult witness. She avoided answering questions directly, gave long speeches unrelated to the question posed to her, had to be repeatedly redirected to questions, was argumentative and often highly emotional. This behaviour permeated not only her evidence but was displayed from the bar table and during final submissions. The manner in which the mother gave evidence made it very difficult to follow her narrative. In addition, there were numerous inconsistencies in her evidence.
For this reason, I am unable to place any significant weight on her evidence where it is not otherwise corroborated by another source.
The father’s evidence
In terms of the evidence of the father, although the mother could not cross-examine him directly, he was cross-examined by the ICL. The father gave his evidence in a relatively straight forward manner and his credibility was not seriously challenged.
The father’s wife, Ms B, gave her evidence in a forthright and credible manner. Her evidence was given under difficult circumstances where she was cross-examined directly by the mother, having never had any contact with her prior to attending court and having essentially taken the mother’s place in X’s life. The mother did not significantly disrupt Ms B’s evidence, and I have no reason to otherwise call it into question.
The expert evidence
Ms H gave her evidence in a professional manner and gave the court no reason to question her bona fides.
Dr J was not required by the father or the ICL for cross-examination. Although the mother wished to call Dr J, she had not put him on notice and when she contacted his office, he was not available for cross-examination on such short notice. It was determined that this would not however delay the final hearing and that his report would go into evidence unchallenged.
THE LAW
Pursuant to section 60CA of the Act, the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at [18] has said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Section 60CC(2) of the Act specifies six matters which must be considered in determining what is in the child’s best interests.
The matters to be considered pursuant to section 60CC(2) of the Act include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In contemplating the aforesaid matters, the court must consider any history of family violence, abuse, or neglect involving the child or a person caring for the child, together with any family violence order that currently or has previously applied to a child, or a member of the child’s family.
Section 60CG of the Act requires the court to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and is not inconsistent with any family violence order.
Although I have had regard to all of the considerations under section 60CC of the Act, I may not specifically address each in my decision.
THE POSITIONS OF THE PARTIES
The mother’s case was that X had been abducted from her at eight months old by the father in 2012, that X had been alienated from her since that time, and that X had been potentially coached by the father as to what views to express. However, having had no contact with X since she was eight months old, and only minimal contact with the father since that time, had seemingly no evidence on which to base her assertions other than her experience of the father during the relationship.
Despite not having seen X for over 12 years, the mother’s view was that as her biological mother, all she needed was a few visits to re-establish a relationship with X. The mother told the court that she believed three visits would be sufficient to establish rapport and foster a relationship with X, however she eventually conceded that these visits ought to be supervised. The mother believed that X would be able to adapt to her quickly and as such, X would be able to move into a normal arrangement living solely with the mother. The mother also asserted that she was able to meet X’s needs as she had previously cared for her younger sister as well as her 10-year-old son.
The mother contended that any concerns about her reactive behaviour could be addressed through the presence of the supervisor at the proposed three initial visits with X.
The father’s case is that it was the mother who abandoned X, having failed to participate in the Country D proceedings and having made no effort to attempt to spend time with X until about 2020.
His case is that X is well settled and thriving in his care and that Ms B is seen by X as X’s “mother.” The father alleged that the mother’s behaviour has always been problematic including that she has committed family violence against him during their relationship, that she has always been emotionally reactive and that she is likely to expose X to that behaviour and/or her narrative that X was “abducted” by him.
Abandonment or Abduction of X
As already stated, the mother’s evidence was almost impossible to make sense of including on the issue of how X came to be in the father’s care in Country D and why she has not been successful in pursuing time with X since. The mother’s evidence was not only inconsistent but also inherently unbelievable including:
·She had not been served with the original documents for the Country D proceedings and did not know about them, albeit the court documents indicated otherwise;
·She could not return to Country D for the custody hearings because she may be arrested, (albeit this contradicted her lack of knowledge of same) and was seemingly unable to contact the court or have a lawyer attend on her behalf;
·She left Country C without X on the promise of the father that if she did so, he would bring X to her;
·She contacted several lawyers in Country C, but they could not help her;
·She contacted Queensland Legal Aid, but they could not assist her because the proceedings were based in Victoria;
·She contacted Victoria Legal Aid, but they were “too busy” to help her;
·The three lawyers appointed to assist her pursuant to the scheme, through no fault of the mother, were unwilling to assist her including refusing to return her calls or draft documents as requested.
However, I have difficulty understanding why the mother, having attempted to remove X from Country D without the father’s consent, simply left X behind, never to return.
In the end I am unable to make a finding about how X came to be left in Country D with the father, however, I am not satisfied that the mother took the actions she said she did to pursue the relationship with X thereafter. I accept the evidence of the father which is in part supported by documentary evidence that the mother failed to participate in the Country D proceedings and thereafter, made no attempts to have contact with X until about 2020 when she endeavoured to arrange a mediation with the father.
Ms H’s assessment
Ms H’s evidence was that the mother behaved in an emotional, dysregulated, and heightened state throughout her interview with her. She acknowledged that parents are often under stress during such interviews and is mindful that parents find such processes difficult but nonetheless, was forced to end the interview prematurely with the mother due to her behaviour including persistently swearing at her. Ms H stood by this in the witness box stating she had been sworn at on multiple occasions and although she had not recorded all of these events in her notes, she had made reference to the mother saying that the father’s affidavit was “full of shit.”
The mother endeavoured to explain this behaviour during trial by stating she was had been confused about the start time of the assessment as she lives in Queensland and Ms H was in Victoria. However, Ms H’s evidence was that interview times were set for the time zone in which the interviewee was residing. In any event, such a misunderstanding would not justify the mother’s alleged behaviour.
In terms of whether the mother actually swore, the mother’s evidence was again inconsistent. She firstly said words to the effect of “that is what happens in Queensland” and “all Queenslanders swear” but she also said she never swears and “maybe one swear word.” For reasons already stated, I am unable to rely on the mother’s evidence on this point and have no reason to doubt Ms H’s version of events.
Furthermore, Ms H’s description of the mother was entirely consistent with my own observations during the trial. Having witnessed the mother over two days in court, both in the witness box and in the courtroom, it was readily apparent that the mother struggled to contain herself and her emotions. She regularly interrupted the court processes, had outbursts in the courtroom, and had to be repeatedly told to be quiet.
As a result of her observations of the mother, Ms H was concerned that if X were exposed to her mother’s highly emotional behaviour, that X may decide she never wants a relationship with her. Under cross examination, Ms H did not resile from her assessment that X would be at risk of emotional harm if she had any contact or spent any time with her mother.
X’s views
X informed both Ms H in 2023 and the ICL in 2024 that she did not want to meet the mother nor spend any time with her. It was evident from this that X had held this view for some time.
Ms H did not believe X had been coached but found her to be a thoughtful child who was genuine in her views.
Ms H’s opinion was that X’s views should be given significant weight and that if X was forced to see the mother, or even to participate in the preliminary stages of family therapy prior to seeing the mother, that this may “derail” any possibility of a relationship in the future.
Ms H’s evidence was that X had not “closed the door” entirely on the mother but is not ready, and, if forced to spend time with the mother, X may “dig her heels in.”
X’s needs and the capacity of the parents to meet them
In terms of the parties parenting and ability to meet the needs of the child, the mother gave evidence that she did not believe the father was caring for the child himself, that he had assistance from his family and that he did none of the hands-on parenting of X. However, as already stated it is evident that the mother has had no direct knowledge of what has been happening in the father’s household since 2012, and, her proposal for shared care would suggest that she does not have serious concerns about the father’s ability to meet X’s needs.
The father’s evidence, which was corroborated by Ms B, is that they share the care of both X and their son, G, and although the father works full-time, he works three days a week from home. He says he drops the children to school in the mornings and that he and Ms B share after-school care.
There is no evidence that the father is unable to meet X’s needs and indeed she appears to be thriving in his care.
Furthermore, the father demonstrated insight into X’s emotional needs at an early age when he took her to see a psychologist so that he could ascertain the best way to tell X that Ms B was not her biological mother. It should be noted that he did this at a time when no proceedings were anticipated and there had been no contact with the mother for some time. He arguably could have allowed X to continue to believe that Ms B was her mother but understood this may not be in X’s long-term best interests.
However, the mother’s ability to meet X’s day to day needs is untested. Although she asserts that she has cared for her other child, a ten-year-old son, her evidence was that at the time of the trial in November 2024 he was being educated in Country C and had been there for some time. Although she asserted he “comes and goes” from Country C and would be returning to Australia, there was no evidence to corroborate this assertion. Nor was there any evidence to corroborate the mother’s previous care of her younger sister.
In any event, the primary concern around X was not so much about the mother’s ability to meet her practical needs but rather her lack of insight into the child’s emotional needs. There is no greater example of this than the mother’s final proposal that X should live in an equal shared arrangement between the parties, spending six months in Queensland with her and six months in Victoria with the father each year. The mother saw no issue with X moving between states and attending different schools for one half of each year, seemingly unable to recognise the impact this would likely have on X, in particular, on her ability to make and maintain friendships groups, to participate in extracurricular activities, and on her school work (noting that schools do not follow the same curriculum in the same order or even offer the same subjects).
The benefit of X having a relationship with each of her parents
Ms H recognised the importance of X having a relationship with each of her parents but in her professional opinion, to force X to spend time with her mother now could jeopardise any possibility of a relationship with her mother in the future, and could destabilise the relationships she does have with her father and stepmother.
The father told Ms H that he would encourage X to go and have a relationship with her mother when she was ready. Given his demonstrated insight into X’s needs, I accept that evidence.
On the other hand, the mother was quick to dismiss the role the father played in X’s life, seemingly without any firsthand information.
Family violence
The legislation requires me to also give consideration to family violence and any family violence orders. Each of the parties made significant allegations against the other about historical family violence however the allegations were largely untested in cross-examination and were not addressed in submissions.
Accordingly, I do not propose to make any findings in that regard.
DETERMINATION
Having taken all of the aforementioned matters into consideration, the primary concern remains the risk to X of being forced to see her mother against her will and of being exposed to the mother’s erratic behaviour.
As set out in Deiter v Deiter [2011] FamCAFC 82 (“Deiter”) at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
Pursuant to the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 at [86], a risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not. I must also determine whether any risk can be ameliorated.
In this matter there are two risks. The first is that forcing X to spend time with her mother may derail the possibility of any relationship with her. The second is that X would be exposed to her mother’s erratic behaviour and negative comments about the father and Ms B, which could significantly impact her relationship with the father and Ms B. I find the latter risk to be an unacceptable one.
Furthermore, I am not satisfied that the risk of such an occurrence could be ameliorated by other orders such as supervision given the mother was unable to contain herself in either the child impact report, or the court proceedings, when she knew that her behaviour was being scrutinised. The mother also gave evidence about needing to correct “the truth” with X, particularly around the alleged abduction by the father from the mother’s care.
It is therefore not in X’s best interests to spend any time or have any contact with the mother. Even limited contact through phone calls or cards and letters would risk exposing X to negative and/or destabilising comments about her past and her home life.
I also accept Ms H’s evidence that subjecting X to family counselling is likely to be counterproductive and not in her best interests, until she is open to explore a relationship with her mother. It is also likely that when X is older and more mature that she will be able to make her own assessments of any negative commentary provided by the mother.
In regard to parental responsibility, in circumstances where the mother has had no role in X’s life for 12 years and is to continue to play no active part in it, it is in X’s best interests that the father have sole parental responsibility for decision making for her.
Likewise, the father ought to be able to travel with X overseas without the permission of the mother. The father and his wife were born in Country C, and it would be in X’s best interest that she be able to experience her cultural background. Accordingly, I propose to make orders that provide for the father to be able to take X out of the Commonwealth of Australia and to obtain a passport for her, without the consent of the mother.
For all the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 30 January 2025
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