GHASEMI & ZOKA
[2015] FamCA 1013
•17 November 2015
FAMILY COURT OF AUSTRALIA
| GHASEMI & ZOKA | [2015] FamCA 1013 |
| FAMILY LAW – CHILDREN – sole parental responsibility – child to live with the mother – child to spend time with the father – parties restrained form removing child from the Commonwealth of Australia – child placed on airport watchlist – where the father perpetrated family violence and abuse – where the father sought to spend time with the child in the United States – where the father had sought to register a family court order of Iran in the United States – consideration of whether the child was at risk of abduction if spending time with the father in the United States – where the child expressed a strong desire to live with the mother. |
| Family Law Act 1975(Cth) s 4 s 4AB s 60B s 60CA s 60CC s 61 DA s 61DAA s 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Ghasemi |
| RESPONDENT: | Mr Zoka |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bint |
| FILE NUMBER: | BRC | 9494 | of | 2012 |
| DATE DELIVERED: | 17 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 28 and 29 September 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person 28 September 2015, no appearance 29 September 2015 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER | C M Bint Family Lawyers |
Orders
That Ms Ghasemi (“the mother”) have sole parental responsibility for the child, the child K, born … 2000 (“the child”).
That the child live with the mother.
That the child spend time with Mr Zoka (“the father”), as agreed between the parties, in writing, and in the absence of any such agreement as follows:
a.That on any occasion when the father may travel to Australia, there be liberty to spend not less than one week with the child, save that there be no more than two such visits per year;
b.That the father provide to the mother, in writing, not less than 90 days notice of any proposal to spend time with the child in Australia, such notice to include,
i.The commencement date and time;
ii.The conclusion date and time;
iii.The location for changeovers;
iv.A contact telephone number for the child whilst she is in his care; and
v.The address where he intends to exercise such time with the child.
c.That the mother advise the father not less than 14 days after the receipt by her of any such proposal, of any variations to the father’s proposal.
The Mother do all acts and things reasonably necessary to facilitate the child communicating with the Father by telephone, Skype and/or email at all times as may be agreed and failing agreement as follows:
a.Each Saturday at 10:00 am Australian Eastern Standard Time by Skype, with the Father to initiate the call; and
b.Each Wednesday at 3:30 pm if possible and no later than 4:00pm by telephone; and
c.For the purpose of the telephone contact, the Mother provide a mobile telephone to the child and forthwith by email provide the Father with the telephone number for the mobile telephone so that the Father may initiate the Wednesday afternoon calls to the child via mobile telephone.
That each party, Ms Ghasemi born … 1973 and Mr Zoka born … 1957, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child, born … 2000 from the Commonwealth of Australia up to 12 midnight on 4 July 2018;
AND IT IS REQUESTED:
That the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghasemi & Zoka 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 BRISBANE |
FILE NUMBER: BRC 9494/2012
| Ms Ghasemi |
Applicant
And
| Mr Zoka |
Respondent
REASONS FOR JUDGMENT
introduction
By her Initiating Application filed 22 October 2012, Ms Ghasemi (“the mother”) seeks orders that the parties’ only child, the child K, born in 2000 and hence presently 15 years of age (“the child”) live with her and that she have sole parental responsibility for her. She further seeks orders that Mr Zoka (“the father”) spend block holiday time with the child in Australia, and proposes a liberal telephone and Skype communication regime during other times. She further seeks an order that the father be restrained from removing the child from Australia because she asserts he represents an unacceptable risk of withholding or abducting the child.
As ultimately formulated in his Case Information filed 27 November 2014, the father sought (it appears) equal shared parental responsibility with the mother in relation to long term decisions pertaining to the child, who would live with the mother in Australia “as long as she is happy and her success in school is reflecting that,” but spend block holiday time with him in the United States. He also sought Skype and telephone communication once or twice a week.
The Independent Children's Lawyer supported the orders sought by the mother.
Subject to the father’s caveat that the child should live with the mother “as long as she is happy and her success in school is reflecting that” it can therefore be seen that the parties are agreed that the child should live with the mother. The issues upon which they disagree are whether the mother should have sole parental responsibility, or whether there should be equal shared parental responsibility, and perhaps more significantly, whether the father should be able to spend block holiday time with the child in the United States, or whether such time should be restricted only to Australia.
BACKGROUND FACTS
The father
The father was born in Iran in 1957, and hence is presently 57 years of age. He trained as a psychologist and holds a PhD in that discipline. Other than that, I know little of his life prior to 1994, when in July of that year, at age 46, he commenced upon a relationship with the mother in Iran.
The mother
The mother was born in 1973, and hence is presently 42 years of age. As with the father, I know little about her life in Iran prior to 1994, when aged 21, she commenced a relationship with the father.
The relationship
The parties met in July 1994 and married in that year. The mother says that in that month, not long after they had been married, the father first perpetrated domestic violence upon her, by slapping her face. She says that domestic violence of one kind or another was thereafter a constant feature of her life with the father. I will consider that in greater detail in due course.
In June 1995 that parties moved to live in the United States, where they continued living until July 1997. They then returned to live in Iran.
In March of 1999 the mother first sought to divorce the father. Her evidence is that under the relevant Iranian law, courts did not and still do not accept domestic violence as grounds for divorce, and her application was initially refused. Ultimately the father agreed to the divorce however, and it was ordered. However a couple of months later a friend mediated between the parties and communicated the father’s desire to remarry the mother. The mother’s evidence is that the father told her “if I married him again he would change his behaviour towards me and as a proof of his promise he would marry me under a specific condition that gave me a right to divorce him at any time without him having to agree…”
In 1999 the parties remarried. However the mother’s evidence is that a month after that, the father returned to his violent behaviour towards her.
In about October 1999 the mother fell pregnant with the child. I will consider in greater detail later issues surrounding the pregnancy, birth and early years of the child, but for present purposes it is sufficient to say that the child was born in 2000, and was only four months old when the parties finally separated. The child remained in the mother’s care but the father was permitted to visit the child for two hours per week.
In June 2001 the mother again commenced divorce proceedings in Iran. On 19 March 2003 the divorce was granted however, in accordance with the conditions attached to her being able to divorce without the father’s consent, she did not obtain any property settlement, nor was the father required to pay her any spouse or child maintenance.
In 2005 on a date which is unclear the father made application to the relevant Iranian Court and was granted the right to spend one day a week with the child.
In November 2005 the mother commenced a relationship with her present husband, Mr F, and they married in Iran in 2006.
In January 2007 the mother and Mr F made application for a visa to relocate to live in Australia.
The relevant Iranian law in relation to the living arrangements for children between divorce spouses is very different to that of Australia. It was not in contest that under Iranian law, where parties are divorced, a child will live with the mother until the earlier of either the child turning seven, or the mother remarrying. Upon the earlier of those events, the child will go to live with the father.
In mid-2007, notwithstanding that the child had not yet reached seven years of age, the father made application to a court in Tehran for the child to live with him based upon the mother’s remarriage in 2006. On 2 June 2007 an order was made granting custody of the child to the father. The child then went into the father’s care and thereafter only spent limited time with the mother. Needless to say that change in care greatly distressed the child, who remained strongly attached to her mother.
In October 2007 there was an episode of physical violence between the mother and father in the child’s presence associated with a changeover. In consequence the father suspended the mother spending time with the child. On 10 November 2007 pursuant to the mother’s application, she was permitted to have the child in her care for one 24 hour period per week.
For some years the mother had been conscious of the impact of Iranian law upon her and the child’s situation, and had been exploring the options that would exist if she were living in other countries with the child. It appears that this had motivated her desire to move to Australia.
In April 2008 the mother and her husband were granted Australian visas and they relocated to this country on 24 June of that year.
Unusually, in fact the father and child relocated to the United States two days later on 26 June 2008. At the time, the father’s mother and sister were apparently living in the USA. Thereafter, there was regular telephone communication between the mother in Australia and the child in the USA.
In July 2008 the father returned to Iran but the child remained in the United States. The father then remarried in 2009 and some months later the child returned to Iran to live with the father and his new wife.
Thereafter whenever she could manage it, the mother would from time to time travel to Tehran and spend about a month in Iran with the child. She did so in August 2009, January 2010 and September 2010.
In March 2011 the father and his second wife separated. He and the child remained living in Iran.
In July of that year the father agreed for the child to travel to Country I to spend time with the maternal grandmother. The mother also travelled there to spend time with her mother and the child, returning to Australia in September 2011 (albeit returning the child to Iran in August).
Then a little over a year later the child again travelled with her paternal aunt to the USA, and the father agreed that the child would again travel to Country I to spend time with the mother and maternal grandmother. That time commenced on 29 July 2012, and on 23 August 2012, without notification to the father, the mother applied for an Australian visa for the child. On 31 August 2012, the mother returned to Australia accompanied by the child and advised the father of her actions.
Earlier that month, for reasons which are not clear on the evidence, the father had again relocated from Iran to the USA. On 5 September 2012 he sought to register the Tehran order in the Maryland Family Court.
The mother opposed the registration of the Tehran Family Court order in Maryland on the grounds that the order was not made with any regard to the child’s best interests. The mother further argued that “Iranian law violated fundamental principles of human rights” in that it changed the custody of the child from the mother to the father based solely upon the mother’s decision to remarry.
The mother commenced these proceedings on 22 October 2012, and on 30 January 2013, Kent J by consent made interim orders that the child live with the mother in Australia. The notation to those orders provided that the parties then expected that the child would live the mother in Australia for the next twelve months.
About the same time as the parties consented to interim orders in the Family Court of Australia, the father discontinued the United States proceedings. However the mother’s attorneys sought to be heard in relation to that, and particularly wanted the matter to be resolved in a way so that the father could not recommence the registration proceedings. Apparently the relevant concept in the United States is that the proceeding be dismissed “with prejudice” as distinct from “without prejudice” to the father’s right to so recommence. The father’s US lawyers successfully opposed that application, with the consequence that the matter was dismissed “without prejudice” meaning that the father could at any time seek to recommence registration proceedings either in Maryland or elsewhere.
On 31 March 2014 Hogan J made an interim order that any time that the father spent with the child is to be in Australia, and restrained the father from attempting to remove the child therefrom. In fact that father has never availed himself of spending any time with the child in Australia, and indeed it appears as though he has never spent any face-to-face time with the child since about July 2012.
At a time which is unclear, the father’s US based family changed from living in Maryland to State B. At the moment it appears as though his mother and sister are living there, but his father, who is ill, has returned to Tehran. The father has also returned to Tehran to care for his father.
Since relocating to Australia, the mother has lived in a bayside suburb of Brisbane where the child is attending school. At the time of trial the mother was not in employment, but it appears as though her husband was.
The child is presently attending high school and doing well both academically and socially. She is a keen participant in several sports.
In 2013 the mother gave birth to a son from her present marriage. He is therefore presently two years of age.
THE ISSUES
The following are the matters the resolution of which I identify are likely to substantially determine the outcome of these proceedings:
1.Has the father perpetrated family violence or abuse of the child;
2.What is the nature of the relationship between the father and the child.
3.What is the nature of the relationship between the mother and the child.
4.Would the child benefit from a meaningful relationship with the father, and if so, how may such a relationship best be facilitated.
5.Would the child benefit from a meaningful relationship with the mother, and if so, how may such a relationship best be facilitated.
6.What risk is there to the child in spending time with the father in the USA, including:
·What is the risk of abduction to Iran;
·If abduction were to occur, what would be the likely effect of it on the child.
Once I have considered the relevant statutory provisions and legal principles, I will consider the material relevant to those issues in advance of a general consideration of the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents. In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
FAMILY VIOLENCE AND/OR ABUSE
Family violence and/or abuse is relevant in these proceedings as follows:
·If I am satisfied that there are reasonable grounds to believe that a parent of the child has engaged in either abuse of the child (or another child) or family violence, then under s 61DA(2) the presumption of equal shared parental responsibility does not apply;
·The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse or family violence is a primary consideration under s 60CC(2), to which the court is obliged by s 60CC(2A) to give greater weight than the benefit to the child of having a meaningful relationship with both of its parents;
·Any family violence involving the child or a member of the child’s family is a relevant additional consideration under s 60CC(3) which the court is obliged to have regard to.
Viewed in that way, it will be rapidly appreciated that little assistance will be derived from making findings in relation to each and every allegation of family violence or abuse which is made by the mother and/or the child against the father. That is particularly so because the mother alleges a long history of family violence, as set out at paragraph 143 of her affidavit filed 22 October 2012.
Rather it is more useful to consider the various species of violence and abuse alleged against the father, and determine whether or not he presents as a risk of repetition of such conduct.
There are several species of family violence alleged. The first is direct physical assault, for instance slapping the mother’s face in October 1994, pulling her hair in January 1995 and kicking the mother on an unspecified date.
There is then a different species of conduct alleged comprising coercive and controlling behaviour that stops short of physical contact. For instance the mother alleges that the father refused to let her go to her sister’s wedding reception (although he ultimately relented); refused to let the mother speak to him in private but required her to speak instead in the presence of his mother; took into his care the mother’s temporary US Green card and refused to return it to her; and generally belittling the mother based upon a view that his family had a better social status than did hers.
A third type of alleged family violence is the father’s refusal to let the mother access appropriate medical assistance in anticipation of the birth of the child. Particularly the father refused, according to the mother, to let her have a caesarean section, or to otherwise undertake the usual tests in advance of giving birth.
The next species of alleged family violence is that the father controlled the mother by removing the child from her care when he discovered that she had been augmenting her breast milk with formula, contrary to his strongly expressed wishes. Indeed not only did the father withhold the child from the mother, but on the mother’s evidence, in that time she was so withheld, he did not himself feed the child for one and a half days. In the case of a young child, if that is true, I am satisfied that withholding any nourishment for such a period of time would comprise serious neglect.
Finally there was in evidence a most disturbing transcript of a taped conversation between the child and the father when she was about 11 or 12 years old and living with him in Iran (the mother then being in Australia). In it the father plainly is belligerent, belittling, controlling, and otherwise acting in a most aggressive way. I will consider the context of that tape in greater detail shortly.
The course of the trial was unusual, in that it did not allow these matters to be fully explored with the father or indeed the mother. That is because although on the first day of the trial the father sought and obtained leave to thereafter appear by telephone from Tehran, during the afternoon of the first day of trial, after an outburst by him during the course of his cross-examination of the mother, he terminated the telephone link and did not thereafter participate in the trial. Therefore not only were the mother’s allegations not tested by the father, but more importantly, the father was unable to be cross-examined by reference to the mother’s allegations.
It is difficult to know what to make of the father’s deliberate absenting himself from the trial in those circumstances. On one view, I could draw an inference that he was unwilling to put his version of events to the test of cross-examination, which would support an inference that he conceded that there was substance to what the mother alleged. On the other hand, his presumable lack of familiarity with litigation in common law jurisdictions might have meant that he was unaware of the inferences which could be drawn from his conduct.
There are some other matters relevant to which version of events I am prepared to accept as being more accurate. The first is that during that part of the cross-examination of the mother which the father did conclude, he appeared to be critical of the mother for focussing upon the past. That appeared to be a tacit concession that some, and perhaps all, of what was captured within that focus had indeed occurred.
Further, the mother has complained of the father’s conduct towards her for many years, including unsuccessfully seeking to have it as the basis for a divorce in Iran.
Moreover, in giving her evidence, particularly of the occasion of the first physical assault upon her by the father in October 1994, the mother appeared to have strong actual recall (for instance she referred to the “heat” that she experienced on her cheek when she was slapped) and was not adamant as to where the blow was struck, but said that she seemed to remember it best as being on the right hand side of her face. These tell in favour of her honesty.
But there is another source of corroboration of the mother’s recollection. That is the child, and particularly her disclosures during the course of the several Family Report interviews which she undertook.
The first Family Report interviews were conducted on 14 January 2013. The child was then 12 years and 6 months old, and had been in her mother’s care for about four months. At paragraphs 47 to 50 of that report, it is revealed that the child “outlined clearly how she felt exposed to family violence and abuse in the father’s care” and said that she felt “controlled, depressed, lonely and isolated in the father’s household.” She stated that the father’s abuse towards her had worsened when he no longer had his second wife to target and he instead directed his frustrations at her.
Of course the child’s recollections could not possibly relate to her time when the parents were both living together as they separated when she was some months old. However what it does demonstrate is that the general tenor of the mother’s allegations are supported by the child’s experience herself of the father (save that the child does not assert any physical violence being perpetrated upon her).
Further, there is the truly troubling translation of a recording made by the child when she was living with the father in Iran. That translation was exhibit 12 to the mother’s affidavit filed 8 November 2012. In it the father regularly directly abuses the child by calling her a “little runt” “rude little runt” and on one occasion referred to her as “you dog shit”. It may be that something is lost in the translation in relation to the reference to “runt” as on no view is the child in question short in stature. Rather it may be, as recorded in the translator’s notes, that “in this transcript many explicit words which are very humiliating have been used. In translating them into English literally [they] will look very strange. Translator has tried very hard to use those words which are close to the intended meaning and convey as much as possible the essence of the expression.”
Leaving aside the direct insults, the following are other features of that transcript:
·The father appears to believe that the child should be subservient to him, and serve him (for instance preparing his bed, getting him cups of tea or food);
·The father blames the child for what he perceives is his unfortunate life, and particularly for his second wife having left him;
·The father completely denigrates the child’s pursuit of education, and underscores that by saying that it will be worthless because that is not where her future lies.
The relevant passage in relation to the last bullet point is worth reciting in full as follows:
.. The little runt thinks that by going to school and scoring high marks she is grown up and mature. I don’t care if you don’t. I shit on your education! When you reach the age of 18 – 19, I will ask you get married and leave here…
The father dealt with this uncomfortable recording in two ways. Firstly he claimed that the mother had set him up by providing the child with the device upon which she recorded it, with a view to her inflaming him to make such utterances. As to this, in her evidence, the mother said that she had no idea that the relevant piece of equipment – which had been bought by her sister for the child – had a capacity to record, and in any event had not had any opportunity to try and coach the child to goad the father into demonstrating such behaviour. I accept that evidence and reject the father’s suggestion that the mother had set him up in this respect.
The second way in which the father sought to deal with the matter was to suggest that his conduct was reasonable discipline of an eleven year old child. He unsuccessfully tried that line of cross-examination upon the Family Report writer, Mr G. Mr G roundly rejected that such conduct could be construed as reasonable disciplinary conduct. I accept that evidence.
Allegations of family violence and abuse of a child are serious. Whilst the gravity of the allegation needs to be borne in mind when considering whether or not I am satisfied on the balance of probabilities that such events occurred, I am nonetheless so satisfied to the requisite standard. Particularly I am satisfied that each of the events referred to in the mother’s affidavit did indeed occur as she alleges, and further that the events involving the child did indeed occur as she alleges. I am further satisfied that the father did withhold milk from the child for one and a half days at a time when she was still breastfeeding, and that such comprises abuse of the child. I am further satisfied that the recorded conversation between the father and the child is itself family violence.
NATURE OF RELATIONSHIP BETWEEN CHILD AND FATHER
I have already referred to the first Family Report noting that the child disclosed that she felt exposed to family violence and abuse in her father’s care. Further, she felt controlled, depressed, lonely and isolated in his household. She told the report writer that although she loves her father (and paternal grandmother and aunt) she felt “desperately unhappy” living away from her mother. The report writer said that “she fears the father’s reactions so much that she hides what is really happening for her. She stated that she has been unable to discuss her true thoughts and feelings with the father.” Later in the report it is said that the child “reported that at times she would have preferred to stay at school and not come home because of the conflict.” She said to the report writer “I just can’t live with him.”
At paragraph 53 of that report the child rated a court decision that she remained living with the mother as 10/10 (where 10 equals most happy) and a court decision that she live with the father as 0 out of 10 (most unhappy). That was in January 2013.
The child was reinterviewed on 21 March 2013 by the same writer. That was in the context of observing her interaction with her stepfather. Relevantly she identified that her relationship with her stepfather was different than with her father, stating “my dad is my dad”.
Most recently on 24 March 2014 the child was interviewed by a second report writer, Mr G. At paragraph 36 of his Family Report there appears as follows:
36. [The child] also told me her thoughts and feelings about her father and spending time with him have changed over the time she has been living with her mother. I note in passing the first Family Report by [Ms R] in which she details comments made by [the child] that suggest she witnessed family violence between her father and her then stepmother. [The child] stated “When I first came here (for assessment interviews) last time I was a bit angry and mad, mostly because he, not because he didn’t want me to see my mum, but because he mainly wanted me for him. Since I’ve known my dad’s happy with me living here with my mum, I feel better and I would like to see him again”.
The child has not spent any face-to-face time with the father since mid-2012. Nonetheless she has maintained regular electronic communication with him (seemingly Skype and telephone) which is plainly enjoyed by her. True it is that she also apparently engages with her paternal grandmother and aunt in some or all of those conversations as well, but plainly the relationship is centred around her father.
At paragraph 47 Mr G concluded that:
[The child] shows good insight into the dispute between her parents. She is a considerate and sensitive young person and I get the impression she is keen to display love and loyalty to both of her parents. Whilst she expresses a clear desire and wants to live with her mother in Australia, she also voices a strong wish to spend time with her father and her extended paternal family members.
It is ultimately difficult to clearly encapsulate the present relationship between the child and her father. It has a background of her experiencing abuse and family violence associated with her father, and her being very sad at being separated from her mother, and plainly missing the everyday experience of her relationship with her. Since mid-2012, she has had the benefit of the day-to-day relationship with her mother, but a much reduced interaction with her father. She has also matured. However, whatever be her past experience of the father and the relationship with him, she is anxious to maintain a relationship, including on a face-to-face basis.
Plainly the relationship is significant to the child and likely to remain so. It has the advantage of being embedded in relationships with the paternal family more broadly; particularly it seems that a paternal aunt is an important figure in the child’s life.
NATURE OF RELATIONSHIP BETWEEN MOTHER AND CHILD
Unlike the father, the mother’s interaction with the child was able to be observed by both Family Report writers. That said, the observation on the first occasion was brief, and little commentary appears derived from it, and no comment is contained about any observation in the second report.
The child plainly has a very close relationship with her mother. She has consistently expressed a desire to live with her, and told the first Family Report writer that she “felt desperately unhappy living away from her mother with whom she feels a strong emotional bond and affiliation.” Poignantly, at paragraph 58 of the report the writer observed:
[The child] discussed how her relationship with the mother is characterised for good emotional support, freedom of expression and most importantly “peace”.
I suspect the child values her relationship with the mother all the more because it was virtually severed when she was only a little under seven years of age. The relocation to Australia whilst on holidays in Country I appears to have been wholly consistent with the child’s wishes, and in part not only motivated by a desire to resume a close relationship with the mother, but also to escape from what she then perceived to be a very difficult environment with her father.
Plainly the child’s primary attachment lies with her mother, and the relationship is central to her perception of herself and her happiness.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH FATHER
Clearly there are strongly positive aspects of the father/child relationship. The father loves the child and that love is reciprocated. The father is a conduit to broader paternal family relationships which are important to the child. However that is not to say that there are not also some risks associated with the child’s relationship with the father.
The first is that the father appears to operate from a position of male privilege, which no doubt is likely to be partly – or perhaps even wholly – culturally derived. The transcript of the father berating the child when she was still living with him in Iran is replete with ample evidence of such a view, demonstrating that the father believes that the role of a woman is to assist a man and to be subservient to him, to the point where he belittles the value of any education for the child as she will inevitably be married off at age 18 or 19.
I can perceive no benefit to the child in being exposed to those sorts of views, whether expressed overtly or covertly.
Moreover that appears to have been the child’s own perception of aspects of the relationship with the father. She told Mr G in March 2014 that she was angry and mad during the course of the earlier Family Report interviews “not because [the father] didn’t want me to see my mum, but because he mainly wanted me for him.”
Further, there is the risk that the child will again be exposed to the father’s family violence and verbal abuse. This appears to likely be a persistent feature of his character. The mother says that it was a constant feature of her relationship, and persisted notwithstanding the father’s promise to her upon their remarriage that he would change his behaviour. There is then the compelling evidence comprising the transcript of the argument between the father and the child in Teheran. However most recently there was the father’s conduct in the proceedings before me. He terminated his involvement in the proceedings with the words “fuck you” and then hung up the phone. Accepting that most self-represented litigants – and indeed represented litigants – in this court can behave poorly because of the emotional strains imposed upon them, it has to be said that the father is not the average self-represented litigant, in that he has a PhD in psychology.
Notwithstanding these criticisms, I am satisfied that the child would nonetheless benefit from a meaningful relationship with her father and that such benefits are best likely facilitated by regular, face-to-face contact between the child and the father in sympathetic surroundings, and in circumstances which see the father able to be involved in all aspects of the child’s life. That said, it is immediately apparent that there is a practical difficulty in achieving that optimum, when both parties live in countries so far away. Simply put, it is unlikely that the child will ever experience an optimum relationship with her father.
BENEFITS TO CHILD OF MEANINGFUL RELATIONSHIP WITH MOTHER
No party contended that the child would not benefit from a meaningful relationship with her mother. That was implicit in the father’s concession that the child should continue to live with the mother, and is consistent with the child’s own perceptions and wishes.
The child has always had a very close relationship with her mother, and it is unfortunate that it was fractured when she changed into the care of the father at about seven years of age. Notwithstanding that fracture, the relationship remains significant to her, and she recalls even now being distressed at not being able to maintain that relationship, for which she appears to have substantially blamed the father.
I am satisfied that the child would best obtain benefit from that relationship by primarily living with the mother, and hence having her involved in all aspects of her life.
RISK OF SPENDING TIME WITH FATHER IN USA
Overview
Although the father has had the opportunity to spend face-to-face time with the child in Australia over approximately the last two years, he has not availed himself of that. Rather he has persistently said that he wishes to spend time with the child in the United States, which has been equally consistently opposed by the mother. The mother and the Independent Children's Lawyer say that the risk of either the father withholding her in the USA, or abducting her to Iran from the United States, is considerable, and considering the likely gravity of the harm effected to the child if she were so withheld or abducted, unacceptable. There are therefore two clear strands to the argument: the first is the risk of withholding or abduction per se; the second is the gravity of the consequences of any such withholding or abduction. I will consider each of those individually.
Risk of withholding or abduction
The father appears to have maintained some fluidity in his place of residence, having alternated a number of times between Iran and the USA. For most of her early life the child lived in Iran. She only moved to live in the United States at almost precisely the same time as her mother relocated to Australia. She then again moved to live in Iran after the father’s second marriage.
The evidence is not at all clear as to where, if the child were living with him, the father would prefer to reside.
He told Mr G in 2014 that he would not take the child to Iran if she visited him in the USA. He justified this by saying “[the child] is a US citizen. I have lived in the US for many years … I don’t feel comfortable about my daughter living in Iran.” However that does not sit comfortably with the fact that she had lived, prior to 2013, for most of her life in Iran. Also this was contrary to what he had told the first Family Report writer during interviews in January 2013. At paragraph 30 it is recorded that the father “did not refute the idea that he and [the child] might also live in Iran in the future.” At paragraph 19 of the third Family Report the mother is recorded as having said that the father had told her “he wants [the child] to be exposed to Iran culture.”
At the time of trial the paternal grandfather was living in Tehran, seemingly so as he could receive medical treatment. The father was living in Tehran caring for him. However the paternal grandmother and paternal aunt live in State B, seemingly on a permanent basis. Moreover the father has a long history (at least according what he told the Family Report writer) of living in the United States. I have already observed that it is unclear precisely how he came to have US citizenship, but one assumes it must have been related to, and likely led to, the father spending considerable time in that country.
Also in the course of the preparation of Mr G’s Family Report the father is said to have told him some ambiguous statements. They are reported verbatim in the report as follows:
That we would not return [the child] to Australia but I have told her that I will give my written word but maybe she thinks [the child] will not want to come back herself. That [the child] might like to live here. She loves her aunt and her grandmother and she loves the land here. This is where she lived for a long time.
At the time of those interviews the father was in City A. Therefore one would think that the word “here” was reference to the United States. However as was observed in the first Family Report (paragraph 16) in fact the child had only lived for 14 months of her then twelve years of life in the United States. On no view could one describe 14 months in total as “a long time.” In any event, the child has never lived in State B, but only Maryland. Therefore there is some possibility that in referring to “here” in that interview, the father was in fact referring to Iran.
The father denies that he has any intention of taking the child to Iran. However as I have noted earlier, he was unable to be tested in relation to that assertion because he abandoned involvement in the trial prior to his cross-examination commencing.
The following points are at least consistent with the father wishing to utilise the present Iranian order in his favour to withhold the child in the United States, and potentially to return her to Iran:
·He successfully argued that the Maryland proceedings, in which he was seeking to register the Iranian judgment in that State, were dismissed without prejudice to him being able to seek registration in the future;
·Notwithstanding his consent to the Australian interim orders, and his lack of opposition in these proceedings to the child continuing to live with the mother, he has not sought to vary the Iranian court order;
·He did not in his material agree not to seek to have the Iranian court order registered in State B (or any other State in which he may reside);
·Although requested to agree to the provision of a bond to be released to the mother in the event that the child were taken by the father in breach of any orders, he refused (albeit on the ground that he could not afford it).
The mother’s former Maryland attorney filed an affidavit in the proceedings. Accepting that the father no longer appears to have any connection with Maryland, nonetheless the attorney’s postulated strategy of the father remains relevant to any State in the United States. At paragraph 4 of his affidavit he said:
If [the father] does bring up the enrolment case (being what Australian Courts would refer to as the registration of the judgment) again, it would likely be at a time when [the child] is in Maryland. He could then file an emergency motion for temporary custody, along with a due course custody motion, and then he could ask for a stay [a temporary hold] on proceedings of any kind to return [the child] to Australia. I believe that the agreement he is proposing is a set-up for this sequence of procedural manoeuvres. Legal proceedings of this nature could take a very long time to defeat or obtain dismissal. Hague Convention proceedings could also take a long time while the child potentially remains in the United States.
That affidavit went on to detail methods of substantially reducing the risks of that strategy being employed. They include:
·The making of a motion to alter or amend the order dismissing the father’s motion without prejudice (which the father has declined to do);
·That all passports be left with the Maryland attorney or a Court Registry (inclusive of all persons in the father’s extended family that are going to see the child) together with the father’s passports (which the father has agreed to do save that he denies the ability to have extended family passports dealt with in the proposed way);
·That the child’s name be placed in the State Departments’ Child Passport Issuance Alert Program (CPIAP) with only the mother or her attorney able to consent for the child to leave the US (to which the father appears agreeable);
·That the Australian orders be registered in the Maryland (and therefore also presumably a State B) Court prior to any potential visitation in the US (to which the father appears agreeable).
Logically to that list could also be added seeking to set aside or annul the Iranian Court Orders.
I also raised with counsel for the Independent Children's Lawyer during the course of the trial whether the court has the power to make an anti-suit injunction restraining the father from commencing any proceedings in relation to the child in any US court. Given the matter was not raised by the parties or argued before me, it is unnecessary to discuss it further.
Against these arguments the father correctly points in his material to the following matters as being inconsistent with him having any intention to withhold the child from the mother and/or take her to Iran:
·He has agreed to a third party holding the child’s passport/s whilst she is in the United States;
·He has agreed to surrendering his own passport/s to a third party whilst the child is in the United States.
Although perhaps, at best, at the periphery of his expertise, in the Third Family Report, Mr G sought to provide assistance to the court in evaluating the level of risk that the father will not return the child to the mother in the event that she were permitted to visit the US. In reaching his ultimate conclusion which was favourable to the father, he placed, it appears, considerable weight upon the father’s decision in January 2013 before Kent J to consent (albeit by way of notation) to the child living with the mother for at least a period of 12 months, which Mr G described as “selfless and child-centred”. He then went on to conclude “I am not convinced the probability or likelihood of such risk (of the father not returning the child) is adequate enough to justify interfering or restricting [the child’s] relationship with her father.”
However in cross-examination by counsel for the Independent Children's Lawyer, he moved somewhat from such a confident position. He was particularly troubled by the fact that the father had not availed himself of the opportunity of spending face-to-face time with the child in Australia. He was also concerned about two other matters which had been also troubled him when formulating his earlier opinion as well. The first was as reported at paragraph 29 of the third Family Report, namely that the father said that he intended to try and visit Australia and spend time there with the child “once arrangements are in place for [the child] to be able spend time with him in the USA” which, on its face, did not appear to be a logical position. The second was the father’s continuing preoccupation and resentment at the mother having taken the child from Country I to Australia without his agreement or forewarning. Particularly he was troubled that that resentment appeared to still be present some 18 months after the events in question, and therefore informs the overall strength and quality of the father’s emotional reaction. He was concerned that that resentment, coupled with his frustration with the inaction of the Australian Court system to respond to it in a way that satisfied him, might mean that the father would see retaining the child in the USA, or indeed taking her to Iran, as entirely justified. Particularly Mr G said he may see it as legally justified given the Iranian Court Order, and morally justified in that the mother only took the child from him by abusing his trust in her in that he had agreed for the child to spend time with the mother in Country I.
Finally Mr G was troubled by the statements made by the father during the course of his interview to the effect that the child “might like to live here” (accepting that where “here” was referring to, is unclear). Mr G said that that statement was incongruent with the father’s otherwise expressed views that the child has a well settled existence in Australia, and particularly he said one was left to wonder on what grounds the father might think the child would not want to return to Australia. Mr G said that that statement might also comprise a rehearsal of a justification for any action by the father not to return the child to the mother.
Mr G was also cross-examined by reference to the father’s view as to the role of women generally, and the role of a daughter specifically. He said that particularly based upon the taped conversation between the father and the child, there is a suggestion that the relationship is power based in favour of the father, and that he expects submission by the child. Particularly Mr G was troubled that it was a very different in dynamic to the conversation that he witnessed between the father and the child (via the telephone) in the course of conducting the Family Report interviews. He was troubled that perhaps the child was then of the view that, knowing she was being observed, it was her role to be submissive.
However ultimately when asked the effect on all of these on his evaluation of the risk of withholding or abduction. Mr G declined to make any direct statement, acknowledging that ultimately the question was one for the court.
In analysing why it is that the father has not availed himself of the opportunity to spend face-to-face time with the child in Australia, there are a number of conflicting considerations. Foremost is that although the father says that he has not been able to afford such travel, it appears as though he has been able to travel internationally, at least from Iran to the United States and back on one or more occasion, and it would seem, also to Country C and perhaps Country D as well. Moreover, the father was unable to be cross-examined in relation to that by virtue of his abandoning involvement in the trial.
Also in the mix is the fact that the father, particularly given his view in relation to male privilege as regards women, may be disinclined to accede to a condition of only seeing the child in Australia, given that it was sought against him by the mother, albeit aided by the Independent Children's Lawyer (also a woman) and imposed over his objection by a woman judge. Again, the lack of any opportunity to test the father in relation to those matters in cross-examination does not assist in assessing the likelihood that such is part of the reason for him failing to take up time.
Finally there is the father’s complaint that any such time in Australia would not have been in a comfortable situation, but would likely have been experienced in a hotel or like scenario. Whilst that may well be so, it makes the father’s statement as recorded in paragraph 29 of the third Family Report all the more curious, in that he specifically contemplated, once arrangements were in place for the child to spend time with him in the USA, then trying to visit Australia and spending time with the child here.
Gauging the level of risk that the father will not return the child to the mother, and seek to keep her in the United States whilst he seeks to have the Iranian Orders registered there, or even abduct her to Iran is a very difficult matter. It involves a number of imponderables. The task of evaluation is made all the harder by virtue of the father not submitting himself to cross-examination.
Ultimately I assess the risk as being real and substantial. Particularly I rely upon:
·The father having instructed his Maryland attorney to oppose his proceedings being dismissed with prejudice;
·His refusal to provide a bond;
·His abandoning involvement in the proceedings prior to him being cross-examined;
·The caveat which he has on several occasions now expressed that the child should live with the mother “as long as she is happy and her success in school is reflecting that” or like language;
·The fact that he has not availed himself of time in Australia but insistent upon face-to-face time being in the United States;
·The fact that he only contemplates seeing the child in Australia after he has first seen her in the USA.
Likely effect on child if not returned
I have already discussed the nature of the relationship between the mother and the child, and its importance to the child. Likewise I have discussed the difficulties and disadvantages of the relationship between the child and the father, although I acknowledge that it is indeed a loving one and the love is reciprocal. However it is important to reiterate that the change in her articulation of wishes from (in the first Family Report) only wishing to spend time with the father in Australia to (in the third Family Report) now trusting the father to return her from the United States if she were to spend time with him there, was explained by her (third Family Report paragraph 36) on the basis that “since I have known my dad’s happy with me living here with my mum, I feel better and I would like to see him again.” Therefore that change does not reflect any different view on her part as to the likely effect upon her if she were not returned. Particularly in the first Family Report at paragraph 68 it was recorded “[the child] had difficulty articulating how she would feel if she was made to leave the mother again. This possibility and her reactions to it seemed unfathomable to her.”
However it is not just the reduction in the quality of the relationship which she would have with the mother which is in play when contemplating the effects upon the child, but also the effects of again living in the father’s household. There is no reason at all to think that the father has changed his ways from those which were so tellingly demonstrated in exhibit 12. Particularly there is no reason to think that he would be more respectful to the child, or now has a different view as to where the power balance should lie in their relationship. Likewise there is no reason to think that he would not still entertain the view that her education is subservient to her obligations to him, and ultimately her obligation to marry at an early age at his discretion.
It is plain from the Family Report that the child identifies that Australia presents her with opportunities she does not have elsewhere. She specifically said to Mr G “I feel I can have a better future [in Australia].” That was consistent with the opinion of the first Family Report writer, Ms R, that the child “expressed that she finally feels hope in her life now that she is again living with the mother.” There is therefore no reason to doubt the opinion ventured by Ms R in that first Family Report to the effect that:
Given the details of [the child’s] revelations during interview there was a real possibility that [the child] could become severely depressed and face an increased risk of self-harming or risk taking behaviour if she were again removed from the mother.
The fact that Ms R was not required for cross-examination only buttresses my acceptance of that opinion.
I am satisfied that indeed there is the potential for catastrophe if the child were withheld from the mother and required to again live with the father, whether in the USA or Iran. I say particularly because the child has previously experienced separation from her mother, and was greatly distressed by it. Moreover, any retention by the father of her would be a breach of the trust that she presently feels that he would indeed return her to the mother. That is likely to impact substantially upon the relationship between the child and the father. Further, I am satisfied that the father’s views and behaviours would likely be substantially damaging to the child if she were to experience them over any length of time.
Evaluation
The risk of the father seeking to withhold the child from the mother is real and substantial. The consequences of him doing so are potentially catastrophic for the child. Taken together, the risk is therefore unacceptable.
Ultimately this case will be determined by the evaluation of this risk to the child on the one hand, with the benefits which would be conferred upon her by spending face-to-face time with her father and extended paternal family in the Unites States, on the other. However in striking that balance, necessarily conditions which could ameliorate the risk of her not being returned to the father will also need to be evaluated, particularly whether any such time could be spent in Australia. I will undertake that evaluation when considering the appropriate orders in due course.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already traversed many of the s 60CC considerations earlier in these reasons when considering the issues. Nonetheless I make the following further observations.
I specifically advert to s 60CC(2A) which requires me to give greater weight to the need to protect the child from harm (etc) than the benefit of the child of having a meaningful relationship with both parents. That is a relevant matter of some consequence in this case.
The child has expressed views that she wishes to live with the mother but is now sufficiently trusting of her father to spend time with him in the USA, in part because she believes that the father is now supportive of her living with her mother and hence would return her to her, and also because she believes that a paternal aunt would return her in any event. The child does have considerable maturity and demonstrates considerable insight into the family dynamic which surrounds her, and I do give her view real weight. However her view cannot absolve me from determining the level of risk for myself.
I have sufficiently discussed the nature of the relationship of the child with her parents. Also relevant in her life are her paternal grandparents and a paternal aunt. The relationship with her grandmother appears to be one of comfort to her although I note that she described that when she was living with her she afforded no emotional support of any real consequence because her grandmother spent most of her time watching television. Likewise I am of the view that she obtains emotional support from her aunt, but the evidence does not really enable me to assess the nature of the relationship beyond that.
Whilst one may have some criticism of the father’s world view, he cannot be criticised for not seeking to be involved in making decisions in relation to the child, which he has done, nor can any criticism be made of him in relation to his communication with her, which is regular and meaningful. However it needs to be observed that that the father has not availed himself of the opportunity to spend time with the child since she relocated to Australia and to that extent, his argument that the child should have the benefit of a meaningful relationship with him by virtue of spending time with him in the United States, is necessarily belied by the fact that he himself has chosen not to promote that meaningful relationship in the last three years.
It does not appear as though the father has made any contribution to the costs of maintaining the child since she went to live in Australia.
I have sufficiently discussed the impact of the child being retained by the father in the United States or elsewhere insofar as it involves separation from her mother. However it is also important to recall that the mother now has a two year old child, being the child’s half sibling, which appears to be an important person in the child’s life. Whilst the evidence does not enable me to assess the likely effect on the child if she were separated from that sibling, I am satisfied that it would be substantial, notwithstanding the sibling’s young age.
The child is of Iranian descent and culture. I am satisfied that in the mother’s care she will obtain the benefits of that association, and that the circumstances in which she spends time with the father are unlikely to impact upon this consideration.
PARENTAL RESPONSIBLITIY
The father seeks equal shared parental responsibly; the mother and Independent Children's Lawyer seek that the mother have sole parental responsibility.
I am satisfied that there are reasonable grounds to believe that the father has both abused the child and perpetrated family violence as alleged by the mother. The presumption therefore does not apply. In any event I am not persuaded that equal shared parental responsibility would be practically workable here. The father has never lived in Australia and knows little of its society. He knows nothing of its systems of education, health or indeed its society generally. How he could usefully bring anything to the table in joint decision making is therefore unclear.
Moreover there remains the father’s problematic views as to the role of women in society. Particularly troubling is his assertion that education for women is not significant because their true role is to marry and to serve their husband. Such a world view is unlikely to be of assistance to the child, and is likely only to lead to disputation between the father and mother in any attempted exercise of equal shared parental responsibility.
There will be an order that the mother have sole parental responsibility.
WITH WHOM SHOULD THE CHILD LIVE
The father did not oppose the child living with the mother. She clearly has a strong attachment with her mother, and has a good relationship with her stepfather and sibling. She is doing well as school, socially and is actively engaged in several sports. The mother presents as a highly competent parent and the child experiences “peace” in her care.
Plainly it is in the child’s best interests that she live with the mother and I will so order.
TIME WITH THE FATHER
As I have explained earlier in these reasons, the parties are not in dispute that the father should spend block time with the child during school holidays. However the father is adamant that such time should be in the United States, and the mother is adamant that, currently that presents too much of a risk, particularly given the father’s refusal to agree to her US attorney’s recommendations as to means to ameliorate the risk. However both the mother and Independent Children's Lawyer, in recognition of the many variables, including the prospect that the father may accede to those conditions in due course, seek an order that the child spending time with the father be as agreed between the parties, save that the father will be entitled to spend one two week block with the child in Australia upon complying with certain notice provisions. That would, of course, preclude the mother from unilaterally refusing to reach any agreement with the father and hence denying the child an opportunity to spend face-to-face with him.
There are three main considerations relevant to the exercise of my discretion in relation to this issue. The first is the level of risk of harm to the child in the event that the father were not to return her to the mother, either by seeking to retain her in the USA, or by taking her to Iran. The second is the undoubted benefit to the child of having a relationship with her father which includes face-to-face time. The third is the fact that the father has not availed himself of the opportunity over the last two or so years to spend face-to-face time with the child in Australia. Also relevant is the fact that the father has had the opportunity to agree to safeguarding conditions which may have sufficiently ameliorated the risk of him withholding the child if she were to spend time with him in the US, but has failed to do so. No doubt it is the prospect of him ultimately so agreeing that informs the mother’s proposal that time with the father be as agreed, hence giving the parties some flexibility without the need to return to litigate in this court to seek the variation of orders.
I am satisfied that there are at least two means to sufficiently ameliorate the risk to the child flowing from the prospect that the father may not return her to the mother after spending time with him. The first is that such time be spent in Australia; the second is that the time take place in the USA on the conditions proposed by the mother’s US attorney.
Absent those ameliorating conditions being complied with by the father, I am satisfied on the balance of probabilities that the real and substantial risk of the father withholding the child in the USA or seeking to take her to Iran, coupled with the potentially catastrophic effects which that would have on the child, mean that ordering time in the USA does indeed present a level of risk which is not in the child’s best interests. I therefore decline to make the orders sought by the father, and am persuaded that the orders advocated for by the Independent Children's Lawyer and mother are in the child’s best interests. Particularly:
·They sufficiently ameliorate the risk of the father not returning the child to the mother, and particularly the adverse consequences to the child which would ensue from any such withholding;
·They nonetheless permit the child to have the benefit of a relationship with her father that includes blocks of face-to-face time, either in Australia, or in the USA if the father is prepared to agree to the sorts of conditions suggested by the mother’s attorney.
OTHER ORDERS
I am otherwise satisfied that the orders sought by the mother and the Independent Children's Lawyer are in the child’s best interest and will make them.
CONCLUSION
For those reasons there will be orders as sought by the Independent Children's Lawyer as set out at the commencement of these reasons.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 November 2015.
Associate:
Date: 17 November 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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