GHASEMI & ZOKA

[2013] FamCA 306

FAMILY COURT OF AUSTRALIA

GHASEMI & ZOKA [2013] FamCA 306

FAMILY LAW – CHILDREN – Interim consent orders made on 30 January 2013 for the child to remain in Australia for a period of 12 months – Where the child’s application for an Australian visa has been rejected by the Department of Immigration

Family Law Act 1975 (Cth)

APPLICANT: Ms Ghasemi

RESPONDENT: Mr Zoka

INDEPENDENT CHILDREN’S LAWYER: Ms Bint

FILE NUMBER: BRC 9494 of 2012

DATE DELIVERED: 7 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 7 May 2013

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

C M Bint Family Lawyers

Orders

It Is Ordered That

1. The Mother deliver a copy of today’s transcript, the reasons for judgment delivered today, and these Orders, along with a completed Department of Immigration and Citizenship Form 1229 relating to the grant of an Australian visa to the child, K born … July 2000, to the Father by email at … within seven (7) days from today’s date.

2. The Father execute the said document (the Department of Immigration and Citizenship Form 1229) at section 3 as the father, giving his consent to the granting of the Australian visa to the child and email the completed form to the Mother at … by no later than 4:00pm on Tuesday 21 May 2013.

3. Failing the Father returning the signed form to the Mother by 4:00 pm on Tuesday 21 May 2013, and upon the filing by the Mother of an affidavit annexing to it a copy of her email to the Father as required by Order 1 hereof and her swearing to the failure of the Father to return to her a signed copy of the application as required by Order 2 hereof, pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia, urgently execute the document on the basis that the Father has refused or neglected to comply with these Orders and, the Court considers it necessary to exercise the powers of the Court under section 106A.

4. The document, executed by a Registrar of the Family Court of Australia appointed under this Order has the same force and validity as if the document had been executed by the Father.

5. The Father have liberty to apply with respect to these Orders.

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 of 2012

Ms Ghasemi

Applicant

And

Mr Zoka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”) concerning K, (“the child”) born in July 2000, who is now 12 years of age. The proceedings were instituted by the child’s Mother, Ms Ghasemi, in circumstances where on 31 August 2012 the child and Mother arrived in Australia and in relation to the child, the Mother had applied for and obtained a visitor visa in Australia. The background to the proceedings is also that the Mother had applied for a permanent resident visa for the child.

2. As at 30 January this year there were issues as between the Mother and the child’s Father, Mr Zoka, as to the living arrangements for the child.  Briefly stated it had been the Father’s position that as a resident of the United States and based on the contention that the child was habitually resident in the United States he foreshadowed there being an application under the Hague Convention seeking final orders under the Convention for the child to be returned to the United States.

3. In the result, for the purpose of the proceedings, an initial Family Report was obtained on 16 January 2013.  That report detailed the history of the matter subject to the limitation that the Father was not interviewed in person nor was he observed in person interacting with the child. 

4. Nevertheless it was clear from that report prepared by a psychologist who is also a family consultant with the court, Ms R, that the child was expressing views to the effect that she wished to remain with the Mother in Australia and the recommendations of the family consultant were essentially a recommendation that whatever was to occur in terms of the child’s country of residence she ought live with the Mother.

5. The hearing on 30 January 2013 essentially resolved on the basis that the Father, with the assistance of his US attorney, Dr Amini, was then prepared to agree, essentially based upon the child’s own views, that the child should live with the Mother in Australia for a 12 month period.

6. As the Orders of 30 January 2013 record, the Orders were made by consent and there was a notation to those Orders that it would be the expectation of both parents for the child to live with the Mother in Australia for the next 12 months subject to further orders of the Court if necessary in the meantime in relation to the Father being able to monitor the child’s progress in Australia.

7. That notation reflected the Father’s concern as at 30 January 2013 that the family report writer had not then had an opportunity to make any observations of the child in terms of her interaction with the mother’s present husband, Mr F.  For that reason the orders of 30 January 2013 included provision not only for the appointment of an Independent Children’s Lawyer to represent the child’s interests in the proceedings but also to provide for a further or supplementary Family Report to be prepared by Ms R addressing the nature of the child’s relationship with Mr F.

8. In the result, a supplementary Family Report was obtained pursuant to that Order as at 21 March 2013.  I should note in passing that the Mother formed her present relationship with Mr F in about November 2005 and they married in November 2006.  In April 2008 Mr F and the Mother were granted Australian visas having relocated to live in Australia.  I should also note that since these proceedings have been on foot the Mother has recently given birth to another child, K’s half-sibling. 

9. Part of the Orders made on 30 January 2013 included a provision for there to be a further hearing on an interim basis in terms of interim time and communication orders on 22 April 2013 this year.

10. The Father with the assistance of Dr Amini appeared by telephone on that occasion.  In the event, on 22 April 2013 the Application for interim orders was adjourned to be heard on 11 November this year.  That date being at the specific request of the Father to meet his own convenience and that of his attorney, Dr Amini. 

11. On 22 April 2013, adjustments were made to the previous Orders for communication between the child and her Father in the context that the Father was travelling to his country of origin, Iran, to assist in the care of his elderly and ill father. 

12. As at 22 April 2013, or at least as at the morning of the hearing on that occasion, it was the Mother’s understanding, based on advice from a migration agent she had retained for the purpose, that it was unlikely that the Department of Immigration (“the Department”) would make any determination in respect of the application for the child’s permanent residency visa pending the final determination of these proceedings.

13. In the result, later on 22 April the Mother received communication from the Department to the effect that a decision had been made by an officer to reject the application for a permanent residency visa for the child. 

14. I find it surprising to say the least, given the terms of my order of 30 January that such a determination was made, that is, that a determination was not postponed until these proceedings were finally determined, or in any event, in the face of an Order of this Court requiring that the child live with the Mother in Australia for a 12 month period, that an officer of the Department would act to reject the application.

15. This requires the Mother to file an application for review with the Migration Review Tribunal and ultimately perhaps an appeal to the Federal Circuit Court, both of which processes may take many months. 

16. It is unfortunate that the Father is unable to appear at least by telephone this morning. I accept that there are communication difficulties from Iran where he is currently. Had he appeared by telephone I would have taken the opportunity to explain to the Father that the child’s Australian visa status is unrelated in the sense of dictating the result concerning the parenting proceedings before this Court.  In other words the powers of this Court to make parenting orders are not governed in any way, shape or form by the visa status of the child the subject of the proceedings.

17. Specifically the grant to the child of a permanent residency visa does not in any way influence the outcome of contested Part VII proceedings in terms of the parenting orders the court ultimately makes. 

18. At least two things are clear from the Orders consented to by the Father on 30 January. First and foremost, it is clear that by his consent it was intended by both parents that the child remain living in Australia for a 12 month period subject only to such applications as might be made by either party in that period.  Second, it is clear from the notation referred to that the Father was keen to be in a position to monitor the child’s progress and, as I have earlier noted, facility was made for there to be an interim hearing firstly on 22 April and then as I have referred to at the request of the Father for that hearing to be postponed essentially until November of this year.

19. The difficulty that has now been created by the actions of the Department is that the child’s status as a resident of Australia has been put in potential jeopardy, as is her access to the benefit of the Medicare system and her health requirements and there may be potential difficulties for her education.  I expect that if the Father had the opportunity to have these matters explained to him he would clearly understand that it would not be in the child’s best interests for her to be in any way jeopardised in these respects given that he recognised by his consent given on 30 January this year that it was in the child’s best interests that at least for the 12 month period from then she remain living with the Mother in Australia, subject to the monitoring referred to.

20. Obviously, in respect of any proceeding in a court, a person affected by any order ought to have a reasonable opportunity to be heard in respect of that order before it is made. (See Kirby J in Allesch v Maunz (2000) 26 Fam LR 237 at [38] and [39]). Therefore I propose that any orders I make today will include a provision for the Father to have liberty to apply and include provision for the reasons I am currently delivering to be provided to the Father for that purpose.

21. Section 68B within Part VII of the Act provides jurisdiction for this Court to make relevant injunctions in relation to a child. Specifically section 68B(2) provides that:

    A court exercising jurisdiction under this Act (other than in proceedings to which subjection (1) applies)  may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

    Subsection 3 provides that:

    Such an injunction may be granted unconditionally or on such terms and conditions as the court considers appropriate.

22. I am satisfied that it would be contrary to the child’s best interests, in all of the circumstances of this case as briefly outlined, for her continued residence in Australia with the Mother at least for the period contemplated by the Order made on 30 January this year to be put in any jeopardy.  Likewise it would be contrary to the child’s best interests, given the parties agreement as reflected in the consent Orders for that to occur, that she not have the benefit of the health benefits provided under the Medicare scheme and the benefit of her continuing education.

23. I would hope that upon mature reflection of these reasons the Father would recognise and understand that the imperative is for the child’s residence here at least for the period foreshadowed in the 30 January order to be stabilised.  In these circumstances I would hope that the Father would recognise the benefits for the child of executing the consent form that has been provided to him being a Form 1229 to facilitate the permanent residency application for the child.

24. I reiterate and stress to the Father that the grant of permanent residency for the child in no way limits this Court’s jurisdiction nor even does it affect the consideration by this Court of parenting orders ultimately to be made within the meaning of Part VII including the allocation of parental responsibility and including orders as to where the child is to live or the terms of her communication with either parent.

25. In case there are difficulties of communication with the Father, amongst other reasons it seems to me that I ought order that the Father execute the consent form and I will further order pursuant to s 106A of the Act, that there be provision for a Registrar to sign the relevant document. Section 106A contains the provision for an order under the Act directing a person to execute a deed or instrument, and in the event that person refuses or neglects to comply with that direction, ss 106A(1)(b) states that – and I stress:

    ... for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

    the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

26. The Independent Children’s Lawyer has submitted proposed orders to give effect to this provision.

27. For these reasons I therefore make the orders set out at the commencement of them.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 7 May 2013.

Associate: 

Date:  7 May 2013