Glasscock & Nazari
[2022] FedCFamC1F 471
Federal Circuit and Family Court of Australia
(DIVISION 1)
Glasscock & Nazari [2022] FedCFamC1F 471
File number(s): SYC 1460 of 2020 Judgment of: SCHONELL J Date of judgment: 5 July 2022 Catchwords: FAMILY LAW – CHILDREN – Interim orders – Where the mother sought to take the child overseas for work and for a holiday and also sought sole parental responsibility – Where the father opposed the mother’s travel for work to [Country B] for four months but later agreed provided that a bond be paid – Where the parties are in a highly conflictual relationship – Where the father has not spent physical time with the child since July 2021 – Where the Independent Children’s Lawyer was of the view that time with the father should commence immediately and thus opposed the mother’s travel for work – Where a low risk of the mother not returning was assessed – Ordered that the mother be permitted to travel subject to a bond and undertaking being provided – Where it was appropriate to make an order for the mother to have sole parental responsibility in the interim. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65Y, 69ZL, 69ZQ
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: DeLuca & Farnham [2019] FamCAFC 100
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1976] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 4 July 2022 Place: Sydney Solicitor for the Applicant: Mr Kassem The Respondent: In person Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist & Mediator ORDERS
SYC 1460 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GLASSCOCK
Applicant
AND: MR NAZARI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.To the extent that any prior order of the Court in this matter is inconsistent with the orders below, these orders shall prevail.
2.The applicant mother (“the mother”) shall within 72 hours’ deposit into the trust account of her solicitor $20,000 (“the bond”), with such bond to be made available for the father’s use for X born in 2017 (“the child”) recovery and return to Australia should that become necessary. The respondent father (“the father”) is at liberty upon 48 hours’ notice to make an application in respect of the release of the bond to him. The bond shall be returned to the mother upon her return to Australia on or before 16 November 2022.
3.Upon the mother’s compliance with Order 1 and her undertaking not to deal with in any way, including by way of transfer or encumbering her real estate property in Canberra, pending her return to Australia, the mother is permitted pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) to remove the child from the Commonwealth of Australia for the purpose of travel outside Australia between July 2022 and November 2022 and between December 2022 and January 2023.
4.The mother shall have sole parental responsibility for the child with respect to decisions relating to the child’s health and education, and:
4.1the mother shall keep the father advised of the child’s progress including but not limited to matters of the child’s health and education;
4.2The father shall be entitled to communicate with the mother any concerns or any suggestions he wishes to make relating to matters of the child’s health and education; and
4.3the mother shall give due regard to such matters as are raised by the father but, in the event that no agreement is reached, then the mother shall be the person to make the final determination or decision.
4.4 for the purposes of applying for an Australian passport for the child.
5.The child shall live with the mother AND THE COURT NOTES THAT the mother and the child currently live in the Australian Capital Territory.
6.Subject to the following Order, the child shall spend time with the father as agreed between the parents and failing agreement as follows:
6.1commencing Saturday 19 November 2022 and each fourth Saturday thereafter for 5 hours from 10am to 3pm with such time to be spent in Canberra; and
6.2commencing on Saturday 25 November 2022 and each fourth Saturday thereafter for 5 hours from 10am to 3pm with such time to be spent in Sydney PROVIDED THAT such time is not to occur at: Location C; at any form of crisis accommodation; at a hostel; or any accommodation the father shares with other people without the express written consent of the mother;
6.3via Facetime or such other video call app as is agreed between the parents:
6.3.1commencing on Wednesday 6 July 2022 and each alternate Wednesday thereafter at 7.30am (in the place where the child is presently residing); and
6.3.2commencing on Saturday 13 July 2022 and each alternate Saturday thereafter at 7.30am (in the place where the child is presently residing).
7.Changeovers shall occur as agreed between the parents and failing agreement:
7.1at Handover Location D on those days that the child’s time with the father is to take place in Canberra pursuant to the above orders;
7.2at Handover Location E on those days that the child’s time with the father is to take place in Sydney pursuant to the above orders,
and both parents shall ensure that during changeovers:
a.neither parent will enter the other’s home;
b.each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
c.each parent will conduct themselves in a child focussed manner;
d.each parent will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other; and
e.neither parent will discuss issues of any controversy between them.
8.Both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address and contact telephone number.
9.Each parent shall be permitted to communicate directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and this order shall constitute sufficient authority for such communication.
10.Each parent is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
11.Each parent shall do all reasonable things necessary to ensure that they facilitate the child participating in their scheduled extra-curricular activities during such periods that the child is spending time with them.
12.Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
13.Without limitation to any other order providing for communication between the parents and the child, the child may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the child communicating with the other parent by electronic means on a regular basis.
14.Without admissions, each parent is restrained from:
14.1Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
14.2 Consuming any prescription medication other than as prescribed;
14.3 Physically disciplining the child;
14.4Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
14.5Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
14.6Permitting the child having access to any of the documents filed in these proceedings;
14.7 Communicating any information intended for the other parent through the child;
14.8Causing the child to be a medium in any way between the mother and the father or between the mother and the father and any other person; and
14.9Discussing major long-term matters with the child including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the child or the parties agree to the matter being raised and discussed with the child.
15.That the father’s time pursuant to Order 6.1 and 6.2 be suspended in the period December 2022 to January 2023 specified in order 3.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Glasscock & Nazari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interim proceedings where the mother seeks orders to take the parties’ child X born 2017 overseas for two periods of time between July 2022 and November 2022 to Country B and then again from December 2022 and January 2023 to Country F.
The trip to Country B is for work purposes and the trip to Country F is for a holiday.
The father initially opposed the mother’s application. He sought orders as follows:
1. The mother and father to have shared parental responsibility for the child of the marriage [X].
2. The child to remain on airport watch list for the safety of the child.
3. The child to spend substantial and significant time with the father.
4. The child to relocate to Sydney.
5. The mother to pay AUD 80,000 as a compensation for the domestic violence against the father.
6. [Ms G], the family report writer to be cross examined.
The Independent Children’s Lawyer (“the ICL”) circulated a Minute of Order, which provided for time between the father and the child, sole parental responsibility to the mother, and did not oppose the mother’s trip to Country F. The father on receipt of this order opposed sole parental responsibility but agreed to the Country F trip.
The ICL proposed orders in the following terms:
Prior inconsistent Orders
1.To the extent that any prior Order of the Court in this matter is inconsistent with the Orders below, these Orders shall prevail.
Limited Sole Parental Responsibility
2.The mother shall have sole parental responsibility for the child [X] […] 2017 (‘the child’) with respect to decisions relating to the child’s health and education, and:
2.1the mother shall keep the father advised of the child’s progress including but not limited to matters of the child’s health and education;
2.2The father shall be entitled to communicate with the mother any concerns or any suggestions he wishes to make relating to matters of the child’s health and education; and
2.3the mother shall give due regard to such matters as are raised by the father but, in the event that no agreement is reached, then the mother shall be the person to make the final determination or decision.
Live with
3.The child shall live with the mother AND THE COURT NOTES THAT the mother and the child currently live in the Australian Capital Territory.
Spend time with
4.Subject to the following Order, the child shall spend time with the father as agreed between the parents and failing agreement as follows:
4.1commencing on Saturday 16 July 2022 and each fourth Saturday thereafter for 5 hours from 10am to 3pm with such time to be spent in Canberra; and
4.2commencing on Saturday 23 July 2022 and each fourth Saturday thereafter for 5 hours from 10am to 3pm with such time to be spent in Sydney PROVIDED THAT such time is not to occur at: [Location C]; at any […] form of crisis accommodation; at a hostel; or any accommodation the father shares with other people without the express written consent of the mother;
4.3via Facetime or such other video call app as is agreed between the parents:
4.3.1commencing on Wednesday 6 July 2022 and each alternate Wednesday thereafter at 7.30am;
4.3.2commencing on Wednesday 13 July 2022 and each alternate Wednesday thereafter at 5.30pm.
Changeovers
5. Changeovers shall occur as agreed between the parents and failing agreement:
5.1at [Handover Location D] on those days that the child’s time with the father is to take place in Canberra pursuant to the above orders;
5.2at [Handover Location E] on those days that the child’s time with the father is to take place in Sydney pursuant to the above orders,
and both parents shall ensure that during changeovers:
a.neither parent will enter the other’s home;
b.each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
c.each parent will conduct themselves in a child focussed manner;
d.each parent will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other;
e.neither parent will discuss issues of any controversy between them.
General provisions
6.Both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address and contact telephone number.
7.Each parent shall be permitted to communicate directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and this Order shall constitute sufficient authority for such communication.
8.Each parent is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
9.Each parent shall do all reasonable things necessary to ensure that they facilitate the child participating in their scheduled extra-curricular activities during such periods that the child is spending time with them.
10.Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
11.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the child communicating with the other parent by electronic means on a regular basis.
Restraints
12. Without admissions, each parent is restrained from:
12.1Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
12.2Consuming any prescription medication other than as prescribed;
12.3Physically disciplining the child;
12.4Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
12.5Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
12.6Permitting the child having access to any of the documents filed in these proceedings;
12.7Communicating any information intended for the other parent through the child;
12.8Causing the child to be a medium in any way between the mother and the father or between the mother and the father and any other person; and
12.9Discussing major long-term matters with the child including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the child or the parties agree to the matter being raised and discussed with the child.
AND THE COURT NOTES THAT:
A.The mother and the child currently live in the Australian Capital Territory and the father lives in Sydney.
B.By consent, Order 18 of the Orders of 25 May 2022 enjoined the parents from removing the child from the Commonwealth of Australia and requested that the Australian Federal Police place the child’s name on the Family Law Watchlist and this Order remains in force.
The proceedings are part of a wider dispute about the long-term living arrangements in relation to the child. No final hearing date has been set.
The matter came before the Court urgently as a consequence of the filing of the mother’s Application on 27 June 2022. The matter is in the docket of Judge Eldershaw but, because of my availability, the matter has been transferred to Division 1 of the Court solely for the purposes of determining this Application.
On 29 June 2022, her Honour made various orders fixing the matter for hearing for two days on 4 and 5 July 2022. Her Honour also made various orders for the filing by the father of documents and listing the matter back before her Honour on 20 January 2023 for further directions in relation to the balance of the outstanding applications.
Notwithstanding her Honour fixing the matter for determination over two days, I am of the view that this is an interim application that should be determined on the papers. Consistent with s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), I have the power to determine, which are the issues in the proceedings that require investigation and which may be disposed of summarily. In my view, this Application can and should be disposed of summarily. I raised this with each of the parties and no objection was raised to this course.
The mother relied upon the following documents:
(1)Application in a Proceeding filed 27 June 2022;
(2)Affidavit of mother filed 24 June 2022;
(3)Affidavit of mother filed 3 March 2022; and
(4)Case Outline.
The father relied upon the following documents:
(1)Response to Application in a Proceeding filed 4 July 2022; and
(2)Affidavit of father filed 4 July 2022.
The ICL filed a Case Outline and made reference to a Child Dispute Memorandum dated 14 July 2020 and a Family Report dated 29 March 2022.
Following enquiries made with the mother’s solicitor, the mother offered a bond of $20,000, which she said she would need to borrow from family members. The father on hearing this changed his position and agreed to the trip to Country B based on a $40,000 bond. Enquiries with the ICL as to the quantum of the bond disclosed that the ICL was agnostic as to the quantum.
The mother’s evidence was deficient in a number of respects and so I required her to give some brief oral evidence.
In light of the above, I identify the issues as articulated between the parties to be as follows:
(1)Should an order for sole parental responsibility or equal shared parental responsibility be made;
(2)Should travel to Country B be permitted; and
(3)If so, should a bond of $20,000 or $40,000 be ordered.
Background facts
The parties are, to a large extent, international citizens as is demonstrated by the history of their relationship and where they have resided at various periods of time.
The Family Report records that the parties first met in Country H, in 2016 and began a long-distance relationship with the father living in Country J and the mother in Country K.
The parties married in 2017 and X was born in Sydney. The Family Report records that the parties lived in Country L between 2017 and 2018, in Country M in 2018, and in Country N from 2018 to 2019.
The mother and X relocated to Australia in early 2019, and the father was granted a bridging visa in mid 2019 and moved to Sydney.
Upon relocating to Sydney, the parties separated in December 2019 but continued living in the home together until early 2020 when the father moved out.
The mother commenced proceedings on 4 March 2020.
On 25 May 2020, Judge Smith (as he was then) made orders that X was to spend time with her father each Sunday between 2.00 pm and 5.00 pm at an outside venue. The reasons for this was that the father was at that stage living in shared accommodation and did not have appropriate accommodation available to spend longer periods of time with X. Orders were also made that X live with her mother and that the parties have equal shared parental responsibility. X was placed on the Family Law Watchlist.
In early 2021, the mother and X moved to Canberra for her employment. The father says that the mother made this decision unilaterally. The mother says the father agreed to this move.
Subsequently, the parties were directed to attend a Child Inclusive Conference and on 4 May 2021, the Court made orders that the parties take part in a Family Report. A Family Report was prepared by Regulation 7 Family Consultant Ms G on 29 March 2022, based upon interviews with the parties on 4 March 2022.
The Family Report reveals that the parties are in a highly conflictual relationship. Each makes allegations against the other of conduct and behaviour, including harassment and intimidation. The Family Consultant records the following:
22. There does not appear to be any drug and alcohol concerns for [Ms Glasscock] or [Mr Nazari].
Mental Health
23. [Mr Nazari] has made allegations about [Ms Glasscock] suffering from mental health concerns such as Borderline Personality Disorder and Narcisstic Personality Disorder. [Mr Nazari] discussed that he had made this assessment based on behaviours he had observed, and he was not aware of any formal diagnosis that [Ms Glasscock] had received.
24. [Ms Glasscock] stated that whilst [Mr Nazari’s] behaviour had been manipulative and passive aggressive, she was not aware of any specific concerns about [Mr Nazari’s] mental health that would impact his ability to care for [X].
Notwithstanding such contentions, the Family Consultant records the following:
20. [Mr Nazari] described that he believed that [Ms Glasscock] was a “good mother” and that he had no concerns about the care that she provided [X]. [Mr Nazari’s] opinion was despite his allegations that [Ms Glasscock] had subjected him to emotional and financial abuse during their relationship.
In relation to the future arrangements for X’s care, there appears to be no issue that she should remain in her mother’s primary care. In that respect, I note in the Family Report, the following:
44. [Mr Nazari] discussed that should [Ms Glasscock] contact him with a proposal he would “agree to it”. [Mr Nazari] stated that he wanted “[X] to remain in [Ms Glasscock’s] care” and he acknowledged that it was best for [X] to be with her mother. I asked [Mr Nazari] would he still agree should he have to spend some time in Canberra in order to see [X]. [Mr Nazari] questioned where he would stay if he was to see [X] in Canberra and given he did not drive how he would get down there each week. [Mr Nazari] discussed that when [Ms Glasscock] and [X] moved to Canberra in 2021, he believed that this was in order to further alienate him from [X]. [Mr Nazari] stated that he had wanted to visit [X] in Canberra however, the legal advice he received was that if he was to visit Canberra, this would demonstrate to the Court that he would always do it.
The Family Consultant observed the relationship between X and each of her parents. The Family Consultant observed:
51. During the observations, [X] clearly enjoyed engaging with both her parents through the use of play. [X] was able to not only play alongside her mother and father, but she actively engaged them in the play with her. [X] had a strong and detailed imagination, and she delighted in being able to make up “pretend” situations such as making coffee and food, going on picnics, and being able to tell the adult participants on exactly what she wanted the to do.
52. [X] was observed to be meeting her physical and cognitive developmental milestones. [X] was able to run, jump, and move easily without any assistance. [X] was able to independently feed herself, and even when offered assistance she preferred to do tasks independently. [X] did not appear to have anxiety in engaging with new people, such as myself in the visits. [X] was interested in my role, what I was doing there, and if I would participate in her make believe situations with her.
In relation to a relationship with her father, the Family Consultant recorded as follows:
59. The observations of the interactions between [X] and [Mr Nazari] were able to take place for 1 hour on the 4th of March 2022 at my therapy rooms in [Suburb O]. When [Mr Nazari] arrived, [X] heard him come through the door and she ran out of the room to meet him. [Ms Glasscock] was sitting area as [Mr Nazari] came through the door however, neither [Mr Nazari] or [Ms Glasscock] acknowledged one another in front of [X]. As [X] went into the room with [Mr Nazari], she called out “bye mum”. [Mr Nazari] brought a helium balloon and some activities with him to the visit. [X] saw the balloon and she became very excited asking if it was for her. [Mr Nazari] confirmed it was for her, and he stated, “I am so happy to see you”. [X] jumped up and down yelling “so am I, so am I”. [Mr Nazari] bought a packet of balloons for he and [X] to blow up, and he showed [X] how to do this.
…
63. When it was 5 minutes before it was time to leave, [X] helped her father pack up and he presented her with a chocolate to eat. [X] was comfortable sitting on her father’s lap whilst eating. [X] and [Mr Nazari] engaged in spontaneous physical affection such as cuddles and kisses, and cuddled each other at no time during the observation, did [X] exhibit any signs of anxiety of fear whilst with her father. [X] and [Mr Nazari’s] interactions did not appear contrived for the purposes of the observations.
Under the heading of “Evaluation”, the Family Consultant recorded as follows:
64.In completing this report, a thorough review of the information made available for the assessment occurred. In addition, individual interviews occurred with [Ms Glasscock] and [Mr Nazari]. Observations of the interactions between [X] and her mother and [X] and her father. At the time of the assessment, [X] was in the full time care of [Ms Glasscock], and they live in Canberra ACT. [Mr Nazari] spends time with [X] on a fortnightly basis on a Sunday. It appears that [X] has not been able to spend time with her father on a consistent basis due to a variety of factors including Covid-19 travel restrictions and [Mr Nazari] refusing to travel to Canberra.
65. The assessment has highlighted that [Ms Glasscock] and [Mr Nazari] have engaged in ongoing conflict regarding the parenting arrangements of [X]. Communication between [Ms Glasscock] and [Mr Nazari] appear to have been characterised by mutual allegations of abuse and disagreements about the time that [X] spends with both her parents. This conflict has led to an almost total breakdown of communication between [Ms Glasscock] and [Mr Nazari] which has only served to continue the length of time that the matter is before the court and delay the establishment of structure and consistency for [X].
66. There have been allegations made by the parents about the perpetration of abuse towards the other, and indeed there appears to have been a high level of conflict between [Ms Glasscock] and [Mr Nazari] both during their relationship and following their separation. Whilst the accuracy of the allegations of domestic violence remains unknown, it would appear that both [Ms Glasscock] and [Mr Nazari] actually agree that [X] should have an ongoing relationship with both her mother and father, and they agree that [X] has been able to establish positive relationships with both of her parents. It is not the purpose of this assessment to investigate whether domestic violence did in fact exist in [Ms Glasscock] and [Mr Nazari’s] relationship, rather it needs to be assessed whether both parents are able to move on from the conflict present in their relationship in order to support [X’s] relationships with her parents and how they will be able to do this.
67. [Mr Nazari’s] description that he does not trust [Ms Glasscock’s] motivations in regard to his relationship with [X] can be seen as an issue for both parents. It would appear that [Mr Nazari] has engaged in behaviours such as communication about [Ms Glasscock’s] mental health with her own family, making mental health diagnosis that he was not qualified to make, and providing videos as if [X] had attended a [protest] when in fact this did not occur. [Mr Nazari] has described feeling harassed as he recalled that [Ms Glasscock’s] solicitor who take a photo of him whilst in a shopping centre and passed this on to [Ms Glasscock]. The lack of interactions that would actively build trust between [Ms Glasscock] and [Mr Nazari] has meant they have not been able to coparent in a meaningful way not necessarily for themselves but especially for [X].
68. Should the level of conflict between [Ms Glasscock] and [Mr Nazari] continue, it is likely to put [X] in an untenable position of having to side with one parent over another. This would cause [X] to be caught in a triangle of conflict that consists of her, her mother, and her father. In making [X] the centre piece of the conflict between her parents and literally placing her in the middle of a ‘tug of war’ situation, [Ms Glasscock] and [Mr Nazari] will place [X] in a lose-lose situation. It is likely that it will not matter how [X] behaves with either parent, she will run the risk of losing the relationship with at least one parent if they perceive she has chosen the other parent over them.
The ultimate recommendations of the Family Consultant were predicated upon the father obtaining independent accommodation. In that respect, she records the following:
71. It is my professional opinion that whilst [Mr Nazari] resides in a share house arrangement with […] other adults, that there is an unacceptable risk to [X] given that she does not know the other men who share the home with her father. It is for this reason, that until [Mr Nazari] is able to secure independent housing, that overnight visits should not occur at his current place of residence.
The Family Consultant made recommendations that X remain in the full-time care of her mother, that the mother remain living in Australia and that the mother not move internationally while X is of school age “to allow her to have an ongoing relationship with [Mr Nazari]” (Family Report, paragraph 73).
The Family Consultant recommended that the mother have sole parental responsibility in relation to education, medical and travel (including international travel), and that X spend overnight time with her father in Sydney upon him obtaining independent accommodation with it increasing over a period of time, ultimately to two nights a fortnight and from Year 4 to half the school holidays.
Despite the existence of orders for time between X and her father, no physical time has occurred since July 2021 and, in 2022, compliance with the face time order has been sporadic. In the context of this hearing, I am unable to determine why or how it is that orders have not been complied with. This a matter for a final hearing.
The ICL’s opposition to the Country B trip largely springs from the fact that X has not spent time with her father and that time should resume as soon as possible. It is possibly both a testament to the depth of the relationship that existed between X and her father prior to July 2021, and the fostering and maintenance of that relationship by the mother subsequently, that the Family Consultant was able to observe the closeness of the relationship between X and her father.
The mother is a professional with current employment in Canberra. The mother gives evidence in her affidavit as follows:
7. I have been called upon by [an international organisation] to undertake some urgent work in [Country B] from mid July 2022 until mid-late October 2022. I am eager to perform this work as, the work is very important, it is a good opportunity to undertake it now prior to [X] starting school in Canberra in 2023, it will alleviate the significant financial pressure I am facing and help my career.
8. The role is something I am uniquely placed to do given my previous work on the specific country context and my area of specialisation. Prior to meeting [Mr Nazari], I worked with [the same organisation]. I am on [a specialist team]. Annexed hereto and marked “A'” is a copy of the request. I have redacted details of an [organisational] contact and the mechanism to which I am requested to be deployed to avoid the possibility of [Mr Nazari] attempting to make contact with either/both. [Mr Nazari] has previously made false allegations to my employer and threatened to continue to do so.
9. The deployment is via a global facility supported by Australia. l will return to my permanent place of employment in Canberra at the end of the deployment. [X] will attend kindergarten as scheduled in Canberra from 2023.
10. I am very much looking forward to spending time in [Country B] with [X]. I spent some years in [Country B] working with the [same organisation] prior to [X’]s birth and have many friends there with similarly young families. We celebrated [X’s] first birthday in [Country B] with friends there who are eagerly waiting to spend more time with us. 1 am also looking forward to taking [X] to [theme parks], connecting in person with some of [X’s] extended family, and fast-tracking her [second language acquisition].
11. I am planning to enrol [X] in the local pre-school near my office in [Country B] which caters to expatriate families. I have effectively always been a single parent of [X] and undertaken my work around the hours [X] can be cared for, and sleeps. Being in [Country B] will mean that I have a lot more support available to me should I need it.
It is clear from the above that the mother only seeks to travel overseas for at most four months at one time and then again for another month between Christmas and commencement of school in January 2023.
The father was initially opposed to the mother’s travel overseas. In his affidavit he says the following:
8. The applicant’s ([Ms Glasscock’s]) affidavit is based on lies and manipulation. She is exploiting the legal system.
…
18. Family has never been a priority for [Ms Glasscock]. She only thinks about her sole interest. [X’s] interest was never her priority.
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20. Since separation [Ms Glasscock] has being lying to the court and exploiting the legal system. She worked with Judge Helen and knows how to manipulate the system.
21. On 4 March 2020 [Ms Glasscock] filed her initial application. She got an exemption from FDR on the basis of urgency, claiming that the father intends to take the child to [Country J] which is an absolute lie.
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24. In October 2020 [Ms Glasscock] made false allegations against me to the police, claiming that I am trying to kill her. She used my religious background and nationality to satisfy the police at the first place in order to get an ADVO against me.
25. Unfortuantley, she successfully manipulated the police. I was arrested by the police and put in detention for about 8 hours. It impacted my mental health.
26. After the police interviewed me, I was released without any charges.
27. [In] March 2022 [a] Local Court found [Ms Glasscock’s] allegations to be baseless and dismissed her application for an ADVO. Annexed and marked with the letter “A” is a copy of the court hearing result.
28. On 24 June 2022 [Ms Glasscock] again successfully manipulated the court and got a date for urgent hearing.
29. In paragraph 7 of her affidavit, [Ms Glasscock] claims that she has been called upon by [an international organisation] to undertake a job in [Country B]. I strongly believe that it’s a lie. She has fabricated this to get sole custody of our child and alienate the child from her father.
30. [Ms Glasscock] has attached a copy of an email by [the organisation] offering her a short term employment. The language used in this email is unprofessional. It is unlikely, to be by the [organisation]. Even the starting date of the employment is ambiguous.
31. In addition, in paragraph 13 of her affidavit, [Ms Glasscock] states “I work full time in a busy role”. How a person who is working full time with an organization, is able to work full time with another organization as well?! [Ms Glasscock] is lying.
32. In her affidavit [Ms Glasscock] mentions unnecessary things about herself to show hoe impartant person she is. This is only for the purpose of manipulating the court.
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34. If the mother will be allowed to take [X] overseas, I am sure it’s the last time she will be in Australia. The mother will never return the child to Australia. It will significantly impact her relationship with her father and [Ms Glasscock’s] family as well.
35. [Ms Glasscock] always need an enemy in her life to blame and satisfying her sense of hostility.
Change of Jobs, location and it’s impact on the child
36. [Ms Glasscock] has very unstable life style. Since we married in [early] 2017 she has changed 6 jobs in about 5 different countries. This has had serious consequences on [X’s] mental health.
37. [X] will never have a sold and long term relationship with her friends and extended family. She is always anxious of losing connection with her relative and friends.
38. [Ms Glasscock’s] family believe that she has personality disorder. In August 2019 during a WhatsApp call with [Ms Glasscock’s] sister […], She informed me that [Ms Glasscock] has borderline personality disorder or psychopath. However, I believe [Ms Glasscock] has Narcissistic Personality Disorder.
39. I believe the personality disorder is the main cause why [Ms Glasscock] is frequently changing jobs and places. She finds it extremely difficult to work in a team. Her behaviour has serious impacts on people around her.
40. In 2015 [Ms Glasscock] was in a relationship with a […] man who committed suicide.
41. During our marriage on multiple occasion I was encouraged by [Ms Glasscock] to end my life. She was giving me ideas of euthanasia.
42. I am concerned about the impact of [Ms Glasscock’s] personality disorder on [X].
43. [X] will have hard time with the mother once she is older and able to make her decisions independently. That’s why I want to have a meaningful relationship with [X] in order to support her when she needs it.
44. [Ms Glasscock] lacks empathy, sympathy and understanding of someone’s suffering an problem. She has no moral value as well.
45. During our marriage she was swearing at Jesus and calling him a misogynistic person, but in court hearings she takes oath on Bible. She’s even not honest with herself.
The father’s affidavit is consistent with the observations of the Family Consultant that the parties are in a highly conflictual relationship. Many of the matters raised by the father are clearly in issue. Notwithstanding his criticisms of the mother and his assertion that he was until separation the child’s primary carer, he still proposes that the mother have primary care. As the Family Consultant recorded:
40.… Despite [Mr Nazari’s] belief that [Ms Glasscock] was exhibiting signs of Narcissistic Personality Disorder, he stated that she was a “good mother” to [X] and that he had no concerns for [X’s] safety. …
Applicable law
Consistent with the provisions of s 69ZL of the Act, my reasons are by necessity short. This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to disputed facts.
Notwithstanding such indisputable proposition, submissions were put to me to the effect that I could draw some conclusions from inconsistent assertions. Save and except where matters are agreed, there is a difficulty in me doing so. The best I can do is resolve the matter on the undisputed facts and the objective material where there is no issue drawn.
Parenting proceedings are governed by Pt VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interest of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interest, the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary and additional considerations that the Court is required to take into account.
The Full Court in Goode & Goode (2006) FLC 93-286 set out the procedural steps in an interim application. An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 (“Line”) and DeLuca & Farnham [2019] FamCAFC 100 (“DeLuca & Farnham”), identify a number of factors that are relevant to a determination that I am required to make in assessing the risk of return of the child to Australia.
In DeLuca & Farnham, the Full Court affirmed propositions arising out of the Full Court’s earlier decision in Line. In that respect, the Full Court in DeLuca & Farnham observed as follows:
35.In Line & Line (1997) FLC 92-729 (“Line”), the Full Court set out at [4.49]–[4.51] relevant matters when considering the authorisation of international travel as follows:
4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
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39.In Line, the Full Court said at [4.48] that the two-fold purpose of security was to provide a sum:
a)Which would realistically entice the person removing the children to return; and
b)To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
In assessing the degree of risk that the mother will not return, I take into account her ties to Australia. In that respect, I note that the mother was born in Australia and is an Australian citizen, that the parties chose Australia as the place of birth for their child X, that the mother is in full-time employment in Australia, and that she owns a property in Canberra that she purchased in her sole name in early 2021 for $830,000 which has a mortgage balance of $718,000. She also owns a car worth about $18,000.
The mother also has family ties to Australia. She has siblings who live in Australia, as does her own mother.
I find that the mother has continuing and ongoing ties to Australia such that she clearly has a motive to return.
Whilst I note the parties are in a highly conflictual relationship, it is clearly conceded that the child should live in the primary care of the mother and that the issue between the parties is not a question of whether or not the father should spend time with X, but what the quantum of that time should be and whether or not the mother should have sole parental responsibility.
It is trite to say that conflict per se is not a reason or a motive for the mother not to return to Australia.
I further note that the father does not point to any threat by the mother that she will permanently remove X from the father’s care. The highest a risk of not returning goes is that identified by the father at paragraphs 18, 29 and 34. The entirety of this is based on arrant speculation. Curiously the father also says at paragraph 18, “[f]amily has never been a priority for [Ms Glasscock]. She only thinks about her sole interest. [X’s] interest was never her priority”. If the mother is not as interested in X as the father says, then one may speculate why it is that she would seek to permanently remove her.
The fact that the parties have been international citizens in the past is not a reason for declining the mother’s application to travel overseas.
I note that the mother intends to travel to Country B for the purposes of taking up a temporary position. Country B is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). I acknowledge that once the mother leaves Australia, should she so desire, nothing would prevent her from deviating her course of travel to a non-convention country. That said, however, I take account of the mother’s ties to this country in concluding that the risk of her undertaking such a course of conduct is low.
There is limited evidence before me as to the financial circumstances of the parties in a direct sense. I note, however, that the father is living in fairly impoverished circumstances in shared housing. Of course in the event the mother did not return from Country B, the father would be able to make a request to the Central Authority for her return, the cost of which would be minimal.
In Line, the Full Court had regard to the imposition upon the departing parent of a security at a level that would be such as to not cause hardship. I also note that the Full Court in Line observed that the purpose of providing a security was two-fold, namely to entice the person to return and to provide funds for the non-travelling parent in the event of the necessity to ensure the return of the child.
The mother proposed a bond of $20,000, which she intended to borrow from family. The father indicated that it should be a bond of $40,000. It would be hard to conclude that the difference is justiciable.
I do not currently assess the mother to be a significant flight risk and am of the view that the bond offered of $20,000 together with the mother’s undertaking not to deal with or encumber her home in Canberra pending her return is sufficient surety together with the capacity of the father to avail himself of the remedies under the Hague Convention.
I now turn to consider the s 60CC considerations such as are relevant to my determination. In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of her parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
Both parties consider it important that the child have a meaningful relationship with the other parent. They just differ as to how it should occur.
As stated earlier, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit of having a meaningful relationship with both parents. Each party asserts that there has been family violence. I am simply unable to make findings on the evidence other than to note the allegations and clearly act cautiously. I note, however, notwithstanding such allegations that the father proposes that the mother have primary care and that each contends it is important for X to have a relationship with the other parent.
In determining what is in the best interest of the child, I will now consider the additional considerations so far as they are relevant, and the extent to which I have not already considered them.
Given X’s age, even if there were evidence of her wishes then they would be given little weight. She clearly has a relationship with both of her parents and it is clearly the case that she will be separated from her father for a period of approximately four months. Whilst four months may not be a long time for some children, the period of time is clearly age specific. I agree generally with the concerns expressed by the ICL as to the delay in resuming the relationship between X and her father. However, I am comforted by the observations of the Family Consultant of the closeness of the relationship between X and her father, and whilst I acknowledge that X would clearly miss her father in the period that she is away, there is a clearly developed and established strength to their relationship which will not, in my view, be hindered or disrupted by not seeing her father physically for a further period of four months. I note, however, that I propose to make orders in relation to face time which will enable X to spend time with her father at least over video.
I note that the Family Consultant recorded that “[Mr Nazari] discussed that he wanted [X] to understand ‘all different religions and cultures’” (Family Report, paragraph 47). Clearly even a short trip to Country B may satisfy this desire of the father.
I note that the mother is the primary carer of the child and provides almost all of the financial support necessary to support X. In that respect, the mother gives evidence that the father pays approximately $8.00 per week for child support and has refused to provide evidence of his bank statements to the agency. In those circumstances, therefore, there is clearly a benefit to the child of the mother’s career being advanced providing for potentially an improvement in her income.
There is no other matter relevant to my consideration under s 60CC(3).
In light of the above, I am of the view that it is in the best interests of this child that the mother be permitted to travel overseas for the short periods of time that are proposed and accordingly I will make the orders as sought by the mother.
I otherwise note the parties were in agreement with the orders proposed by the ICL save as to sole parental responsibility (which the father opposed) and when physical face to face time started.
I propose to make the ICL’s orders but will delay the commencement of time in Order 6.1 and Order 6.2 until the mother returns from Country B, and include in Order 6.3 that the time is referrable to the place of residence of the child.
It is appropriate at this stage in the interests of X to make a sole parental responsibility order. The recommendation of the Family Report is that it reside with the mother on a final basis. At this stage, I am not making a final order.
The degree of conflict and disputation is such that it not only impedes the parties’ functional working relationship but also has an impact on X. The parties should reflect carefully on what is recorded at paragraph 68 of the Family Report. In light of the mother’s difficulties in obtaining a passport and the other matters addressed by her in her affidavit and as raised by the Family Consultant, in my view, at this stage such an order is necessary. Whether it is made on a final basis is matter for Judge Eldershaw.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 July 2022
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