Enami & Farag

[2021] FCCA 1401

FEDERAL CIRCUIT COURT OF AUSTRALIA

Enami & Farag [2021] FCCA 1401

File number:	MLC 1585 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	15 April 2021
Catchwords:	FAMILY LAW – International relocation – watch list order made preventing the parents and their servants/agents from removing the children from the commonwealth of Australia – matter transferred to the Family Court of Australia – children live with the mother – father seeking time – allegations of family violence
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC.
Cases cited:	Goode & Goode [2006] FamCA 1346
Number of paragraphs:	41
Date of hearing:	15 April 2021
Place:	Melbourne
Solicitor for the Applicant:	Pearsons Lawyers
Solicitor for the Respondent:	Pentana Stanton Lawyers
Solicitor for the Independent Children's Lawyer:	Barbayannis Lawyers Pty Ltd

ORDERS

MLC 1585 of 2021

BETWEEN:

MR ENAMI

Applicant

AND:

MS FARAG

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	15 APRIL 2021

THE COURT ORDERS THAT:

1.The matter be transferred to the Family Court of Australia to be listed on a date to be advised by that Registry.

UNTIL FURTHER ORDER:

2.The Father, Mr Enami, and the Mother, Ms Farag, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children X born in 2009, Y born in 2011 and Z born in 2017 ('the children') from the Commonwealth of Australia.  This order ceases to have effect 2 years after the date on which it is made.

3.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

4.The Court requests that the Australian Federal Police place the names of the children on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.  This order ceases to have effect 2 years after the date on which it is made.

5.The parents do all acts and things to cause and ensure that the following documents are held in the office of Pearsons Lawyers:

(a)The children's passports;

(b)The children's birth certificates; and

(c)The Mother's birth certificate.

6.The Father do all acts and tings to cause and ensure that the Solicitor for the Father provide certified copies of the following documents to the Mother's solicitor as soon as practicable:

(a)The children's passports;

(b)The children's birth certificates; and

(c)The Mother's birth certificate.

7.The children X born in 2009, Y born in 2011 and Z born in 2017 ('the children') live with the Mother.

8.The Father and paternal grandparents be and are permitted to communicate with the children (and not the Mother) by letters, cards (in English) and gifts to the children by provision of same to the Independent Children's Lawyer and if appropriate will forward same to the Mother's solicitor for the Mother to provide/read to the children.

9.The Father's time with the children is otherwise reserved until further order.

10.A transcript of the proceedings this day be placed on the Court File.

AND THE COURT NOTES THAT:

A.An order has been made transferring this matter to the Family Court of Australia in the following circumstances:

(a)The Independent Children's Lawyer made oral application to transfer the matter to the Family Court of Australia and the solicitors for the parents supported that application.

(b)The final hearing is expected to occupy many days more than the 2/3 days of Court time that hearings in the FCCA usually occupy.

(c)The hearing relates to an international relocation of children where the party intending to move, the Mother, opposes the remaining party, the Father, spending any time with the children on the grounds of very serious family violence over many years against the Mother and the children and that the paternal grandparents were complicit in at least some of the abuse.

B.The matter appears to require a final hearing as a matter of urgency because:

(a)the Mother has no rights of residency, family or friends in Australia, is currently in emergency accommodation and by interim orders is prevented from removing the children from Australia.

(b)By interim orders the Father and the paternal grandparents (with whom the children have lived for most of their lives) are unable to spend any time with the children.

(c)The Father alleges a charade of false allegations by the Mother and her family of origin in the UK for the purpose of expediting her and the children's move to the UK and that the children are socially isolated and their welfare is at risk in their current circumstances.

(d)The children have lived with the Mother and the paternal grandparents in Country B for most of their lives and do not speak English.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This is an ex tempore judgment in the matter of Enami and Farag.  This matter comes before me in a busy duty list as one of seven matters.  I have, this day, heard helpful and detailed submissions from Mr MacDonald the solicitor for the Applicant Father, Mr Enami, (‘the Father’) and from Mr Ng, the solicitor for the Respondent Mother, Ms Farag, (‘the Mother’) and from the Independent Children's Lawyer.

2. I will not make the orders sought by the Father that is that he commence to spend time immediately with the children. Neither will I make orders that he commence to spend time with the children at a supervised contact centre at this point in time for the reasons that follow. 

3. The Independent Children's Lawyer made oral application to me at the start of the proceedings this morning for the matter to be transferred to the Family Court of Australia in the circumstances where the matter is now a live international relocation and the context of that international relocation is the Mother's application (in her response for final orders filed on 1 April 2021) that there be no time between the children and the Father.

4. The solicitor for the Father, Mr MacDonald, and the solicitor for the Mother, Mr Ng, both agree that the matter should properly, in the orderly administration of the business of the Federal Circuit Court and the Family Court be transferred to the Family Court of Australia.  I agree with that proposal notwithstanding that, on or about 1 October 2021, the two courts will be made one Court with a Division 1 and a Division 2. 

5. The major reason why I acquiesce in the parties' joint application is that I anticipate that this matter will be of considerable length.  When I say considerable length, I mean of more than two or three days and given the complexity and number of issues.  It appears to me that the matter may take many, many days and I am simply unable to accommodate a hearing of that length in my list given the demands on my list as the business of the Federal Circuit Court is currently being undertaken.

6. The circumstances of this family are agreed to be that the Father has in the past been employed (at least some of the time) as a driver and is currently employed as a part time taxi driver in the circumstances where his employment as a driver has been impacted by the COVID regime.  The Mother, is aged 32.  The parties commenced cohabitation in about 2005.  They married in 2007 and they separated on the first occasion in 2010 when the Mother relocated with the older child, W in 2010 and the Father initiated Hague Convention proceedings.  The end result was that the Mother and W returned to Australia and the Father’s parents and W resumed to live together as a family.

7. The parties have three children, W born 2009 who will soon be 12; Y who was born in 2011 and is 10; and Z who will soon turn 4.  Z was born in Country B.  It's also common ground that between 2011 and March 2020 the Mother and the children resided with the Father's parents (‘the Paternal Grandparents’) in Country B but that in 2020 the Mother, the Father, the three children and the Paternal Grandparents relocated to Australia. 

8. It also appears to be common ground that the Father lived between Country B and Australia and would reside in Country B for a period of four or five months in each year when he would live with his family and cohabit as man and wife with the Mother of his children.  It's also common ground that the Mother left the former matrimonial home on 25 January 2021.  She contacted the police who took out an intervention order on her behalf and a final intervention order was made on 29 January 2021 when the Father was represented but without admission. 

9. The Father issued proceedings on 15 February 2021 seeking to spend time with his children.  The matter was first before the Court when a registrar of the Court dealt with the matter on 10 March 2021 and, at that time, the matter was listed for an interim hearing before me this day.  The registrar listed the matter before me and also made significant notations which are referred to as A, B and C and are read as follows:

   A.The Registrar has declined to list the matter urgently where the Department of Families Fairness & Housing are still investigating AND where the Police are also investigation allegations against the Father.

   B.The Registrar is of the view that the matter is unlikely to be able to progress in the absence of the evidence referred to in Notation A herein and where it would likely also need the guidance of a family consultant.

   C.The Father seeks to press his application to spend time with the children.

10. At the commencement of the hearing, the Independent Children's Lawyer informed myself and the parties that from her point of view it was premature at this time for the Court to be considering the Father's application in the circumstances where the Department of Families, Fairness and Housing (‘DFFH’) had not completed its investigation and had only provided a limited document to the Court and that document being a letter from a department worker of 5 March 2021 which is at page 12 of 51. 

11. The matter comes before me where I have to consider balancing of what, on the parties' cases, are two very serious risks to the welfare of these children.  I am limited in the factual findings that I can make because this is an interim hearing on the papers in a busy duty list where all of the available information is not able to be put before me.  I will hear this matter in accordance with the pathway set out at paragraphs 81 and 82 of the precedent decision I must follow of Goode & Goode [2006] FamCA 1346 and Part VII of the Family Law Act 1975 (Cth) (‘the Act’). I will take into account section 60CA, the best interests of the children being the paramount consideration and section 60CC(1) to (2A) and (3).The full text of sections 60CC(1),(2) and (2A) is as follows:

    60CC   How a court determines what is in the child’s best interests

    Determining child’s best interests

    (1)Subject to subsection (5), in determining the child’s best interests, the court must consider the matters set out in subsections (2) and(3).

    Primary considerations

    (2)       The primary considerations are:

    (a)       the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)       the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

12. I should also note that because of the allegations of family violence, on this interim hearing, I don't consider it appropriate to apply the presumption of equal shared parental responsibility. 

13. The Mother's affidavit of 5 March 2021 sets out in lucid enough terms a long history of a violent relationship with the Father in which both she and the children have been repeatedly and continuously subjected to significant violence and abuse at the hands of the Father.  That violence includes unusual and quite extreme allegations of coercive behaviour and, effectively, that the Mother has been held a prisoner at times, if not always, within the relationship.

14. The allegations include allegations as serious as that the Mother was repeatedly raped over the course of that relationship and that, as a result of the Father refusing medical care, that she has quite recently suffered a miscarriage.  She expresses reasons that she has been careful about seeking to leave the relationship because she fears that, in attempting to do so, she will be killed.  She also sets out in her affidavit that she was concerned that she would be unable to leave the relationship whilst in Country B because, she says, of her perception of political connections she said the Father had.

15. She also deposes to reuniting with the Father in 2010 in what she says was a genuine but ultimately vain, hope that the Father would change his behaviour and that she would be able to live the dream of a happy marriage.  The nature of the allegations put by the Mother mean that if those matters are true or even substantially true, there is, at this point, a great risk to the children's psychological welfare of being exposed to time with the Father including time at a supervised contact centre.  I note the Father's application that he addressed me on was that the time would be in substantial attendance of the Paternal Grandparents who now remain in Australia. 

16. It was put as an alternative at the conclusion of those submissions that if that wasn't accepted that I should order that time be at a supervised contact centre.  I'm not persuaded that I should do so at this point. 

17. Sadly for these children, there is a very significant risk to their welfare on the account that is asserted by the Father.  The Father's case is that the Mother's family has always strongly opposed the union of the Mother and the Father.  He points to what he alleges is their perception that he was of an inferior social status or caste and always opposed the relationship.

18. The Father alleges a charade and essentially a conspiracy between the Mother and her family to make false allegations for the purpose of expediting the Mother's relocation to the United Kingdom and for the purpose of preventing his relationship with the children.  He alleges conversations between the respective paternal and maternal grandfathers on two occasions including yesterday. On the Father's account, the Father has been the subject of coercion, or even blackmail: if he provides the children's passports to the Mother and facilitates her relocation to the United Kingdom then the Father's relationship with the children would be considered by the Mother's family.

19. The allegations go further than that and he says that in communications in earlier 2021, (this is prior to the Mother swearing her affidavit of 5 March 2021), that unless the Father cooperated with the relocation of the Mother to the United Kingdom that false allegations would be made against him by the Mother and that, in Australia, he wouldn't stand a chance of defending those allegations in the circumstances where they are being made by a woman against a man.  The inference being that the perception of the maternal family in the United Kingdom is that, in Australia, at this time, there is a great sensitivity to allegations of physical or sexual abuse of women by men where women will be believed and men will not.

20. The Father's case was that the children are currently isolated in Australia with the Mother, that they have no connections with family or friends and that the “campaign” (and that's my word, the Father's word is “charade”), that has been carried out by the Mother's family is such that the children's relationship with their Father, which is an important part of their identity and their future life and perception of themselves is seriously at risk because of the campaign that the Mother and her Father have joined in. 

21. The Father says the risk of the isolation and alienation of the children from the Father is too strong not to make an order that he see the children at this time.  Implicit in the Father's case was, in substance, that I should actually have deep circumspection about the Mother's current claims in the circumstances that the violence that the Mother complains of is not of recent making but is alleged to be a campaign of violence throughout the entire lives of the children. The submission was made that it is "beggars belief" that if there was substance in the allegation that the Mother would not have been able to contact by letter, telephone or email some authority or family to seek assistance from the desperate circumstances that she says that she was in throughout her time living in Country B.

22. Mr Ng on behalf of the Mother says that it's well known that in cases of sexual or physical abuse within an intimate relationship that the victim can have many conflicting motivations and reasons that effectively mean the victim does not take the action that it is said a logical person would. 

23. I am concerned about the welfare of these children.  I note in the Father's affidavit of 14 April 2021 (which was only filed yesterday in circumstances which make it impossible for the Mother to respond) at paragraph 52, the Father deposed in regard to the child, W, who was aged 11 but will soon be 12:

    [52]W is strong willed and looks after his siblings. .W and I would watch Netflix especially T20 cricket.  Whenever I would go back to Australia to work, he would wear one of my shirts when he went to sleep. 

24. The inference that the Father asked me to draw from that paragraph is that W is very close to him and misses his Father dreadfully when he wasn't there to the point where he would wear a shirt of the Father for comfort.  The circumstance of W worries me. Where the Father asserts (by his solicitor from the bar table today), and it is not disputed, that over the last two and a half months, despite the efforts of the Department of Families, Fairness and Housing, the police, the Mother or any school the children attend, the child W has not spoken to or addressed any person in authority about his circumstances at all.  The Father points to that circumstance as meaning that, of course, W has not said anything because nothing happened.

1. The Mother's affidavit at paragraph 12 of her affidavit filed 1 April 2014 states as follows:

   [12]The sudden change has been difficult for the children, but particularly for W, who has expressed extreme distress.  Our social worker has recommended that I take W for a mental health assessment and particularly to assess whether he is on the autism spectrum.

2. The observations the Mother makes about W are entirely consistent with W suffering from and being subject to the abuse that she describes. But those observations are also consistent with W suffering from the absence of the Father in his life and having a close relationship with him as the Father asserts. When the matter was before the registrar, there was a child inclusive conference ordered pursuant to section 11F of the Act. That conference is not scheduled to take place until 25 August 2021 which is months away.

3. It is further clear that we do not have a determination or evidence from either the Victoria Police or DFFH as to their investigations.  It's important to the Father's case that some two and a half months after the investigation has commenced that no charges have been made against him and he tells me that he has been told that his material, such as, as I understand, computers, etcetera, from his home that have been seized by way of search warrant, will be shortly returned to him.  He points to that as meaning that the police investigation has or is shortly to conclude and to conclude without laying charges. 

4. In terms of DFFH, it's clear by 5 March 2021 that the DFFH had taken a view that the Mother's allegations were of substance.  On 5 March 2021, in a letter to the presiding Magistrate (which I am not sure who it was intended to be addressed to but that may be me), the worker with DFFH opined that:

   Ms Farag is a survivor victim of significant family violence perpetrated by Mr Enami and she recently needed to escape the family home.  Ms Farag advised she was a victim of significant, ongoing and historical physical, emotional, verbal, sexual and controlling abuse…

   It is significant that some information can be obtained from the fact that the DFFH takes the Mother's allegations most seriously and, indeed, states them as fact.

5. It is also significant that that observation was made before the Father had been interviewed.  He was not interviewed until 9 April 2021 and I do not have any further information from DFFH as to whether that has influenced or altered their views about what has occurred.  Significantly in that letter of 5 March 2021, it was also stated as follows:

   Region C SOCIT interviewed Y who disclosed witnessing Mr Enami verbally and physically assaulting Ms Farag.  Y also disclosed Mr Enami would punish Ms Farag by sleep depriving her consistently over several days. 

   Those are allegations entirely at home with the allegations that the Mother makes.

6. I also note that this matter will be, I would expect, back before the Family Court in a matter of weeks or months.  I also note that the Independent Children’s Lawyer's position is that orders could only be contemplated in the seriousness of the allegations when both DFFH and the police have concluded their investigations.  I would hope and expect both those events would have occurred by the time the matter is next before a Court.  In the meantime, what I must weigh up is the risk to the children's welfare that in the event the Father's allegations are true that his relationship with the children will be significantly interfered with for several more months.

7. On the other hand, I have to weigh up the risk to the children that if the Mother's allegations are true, or even substantially true, that the children are likely to be very traumatised by being presented with the Father either in the presence of the Paternal Grandparents or at a supervised contact centre.  It may well be that the use of a supervised contact centre will significantly alleviate the risk to the children, however, in this case, given the seriousness of the allegations, I cannot make that determination at this point in time. 

8. I am conscious that if the Father's allegations turn out to be true my orders are an injustice to the Father and a continuation of a process of alienation and manipulation of the children which is significantly contrary to their welfare.  However, in balancing the two risks, the risk of harm to the children of time with the Father at this point in time is the greater risk to them.  I need to assess that risk notwithstanding all the uncertainties in the case.

9. I am unable to make the judgment that the Father's solicitor urges on me, that is that, because of, effectively, the failure to make timely complaints of the allegations that the Mother makes, that she makes them basically nine years later, I should only place minimal weight on those allegations.  I am unable to do so.  It is the job of the police and the job of DFFH to make judgments.  They don't have the luxury that a court does of listening to arguments from both sides.  The circumstances of life place upon the police and DFFH the duty and burden of making very quick decisions and judgments because they're dealing with safety and risk.

10. The police applied for an intervention order.  It is part of their job to make very quick assessments.  The DFFH is also in a position of having to make quick and urgent assessments in circumstances that are thrust upon them.  The DFFH has made a quick and urgent assessment and both of those matters support the Mother's view.  Hence, it is very difficult for me and, in fact, not open to me to place minimal weight or only treat as historical the Mother's allegations. 

11. Passports are an issue. The Father has the children’s and the Mother’s birth certificates.  The firm of Pearsons are a family law firm of long standing and I have no doubt the children's passports will be safe and available should a Court determine that they be handed to either party. 

12. I will order that the parties do all acts and things to direct and authorise the firm of Pearsons Solicitors to hold the children's passports until further order or agreement in writing and the same will apply to the Mother's birth certificate and the children's birth certificates.  In addition, there will be an order that the parties do all acts and things to direct and authorise the Father's solicitor, Mr MacDonald, to provide certified copies of each of the children's passports, the children's birth certificates and the Mother's birth certificate to the Mother's solicitor as soon as practical. 

13. In addition, I will make the ordinary usual order for a Watchlist Order in regard to the children so that the children cannot be, by some nefarious means, removed from the Commonwealth of Australia, which is a fear that the Father has.  I cannot dismiss his concern or put it at nought. 

14. There will be an order transferring the matter.  There will be a notation to that order so that it is clear on the face of the order as to why I'm transferring it to the Family Court.  I will have a notation that there is significant urgency to the matter in the circumstances where, on the Mother's case, she is being prevented from relocating to the country of which she is a citizen where her family are and in the circumstances where the Father is not able to spend any time at all with the children when, at the time of this hearing, investigations as to the children's welfare had not been completed by the Victoria Police or the DFFH. 

15. The parties, as a matter of law, have shared parental responsibility for the children until I order otherwise and I'm not going to interfere with that.  As I understand it, on the Mother's case, the children are attending school and, so, the default position of shared parental responsibility has not interfered with that.  I am not in a position to make findings or orders relating to parental responsibility.  The Father remains a parent with shared parental responsibility for long-term decisions relating to the children as does the Mother. 

16. If I make an order that the Father and the Paternal Grandparents are at liberty to communicate with the children by letters, cards and presents for the children to be sent to the Independent Children's Lawyer, it is implicit that unless they were unsuitable - (1) they be in English and (2) unless they were unsuitable that the Independent Children’s Lawyer would pass them on to the Mother and that she would communicate the contents to the children. It is in the children’s best interests that I make such an order in all the circumstances.

17. I will order that the children live with the Mother and the Father's time with the children is otherwise reserved until further hearing. I will also order a transcript of the proceedings today. 

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       22 June 2021