HADRAMI & SAHRAWI

[2017] FamCA 334

FAMILY COURT OF AUSTRALIA

HADRAMI & SAHRAWI [2017] FamCA 334

FAMILY LAW – CHILDREN – Where a party is a non-resident –Where an application for summary international transfer has not been pressed – Where allegations of family violence have been made – Where allegations of violence are contested - Where interim orders are made providing for substantial and significant time with the father.

Family Law Act 1975 (Cth) – ss 60CC and 61DA

ZP v PS [1994] 181 CLR 639

Goode v Goode (2006) FLC ¶93-286

Deiter v Deiter [2011] FamCAFC 82

APPLICANT: Ms Hadrami

RESPONDENT: Mr Sahrawi

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Ass.

FILE NUMBER: CAC 230 of 2017

DATE DELIVERED: 12 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 11 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Smith, Legal Aid, ACT

COUNSEL FOR THE RESPONDENT: Mr Hassle

SOLICITOR FOR THE RESPONDENT: Infront Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lloyd

Orders

1. I discharge Orders 3, 4, 5 and 8 of the Orders made by Judge Tonkin on 20 February 2017. 

IT IS ORDERED, BY CONSENT, THAT

1. A representative from the Australian Capital Territory Education Directorate is permitted to uplift material provided to the Canberra Registry by it in relation to this matter in order to redact material that identifies a person who has made a notification and to return the redacted documents within 7 days and it is requested that the Independent Children’s Lawyer advise the Directorate’s representative of this Order.

UNTIL FURTHER ORDER, IT IS ORDERED THAT

1. The children, B, born … 2004, (B) C, born … 2008, (C) and D, born … 2016, (D) shall live with the mother and shall spend time with the father are follows:

   (a)The children shall spend time with the father each Tuesday from 4pm until 6pm;

   (b)B and C shall spend time with the father from 4pm each Friday until 6pm the following Saturday; and

   (c)D shall spend time with the father from 12pm each Saturday until 6pm each Saturday.

2. The children may spend such other time with the father as may be agreed between the parents in writing through their legal representatives. 

3. Changeovers shall occur at a place agreed in writing by the parties and, absent agreement shall occur outside the Target store at the Canberra Centre. 

IT IS ORDERED THAT

1. The matter is adjourned for compliance check at 4pm on 13 June 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadrami & Sahrawi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 230 of 2017

Ms Hadrami

Applicant

And

Mr Sahrawi

Respondent

REASONS FOR JUDGMENT

1. This matter came before me for interim hearing yesterday.

2. Ms Hadrami, the mother, and Mr Sahrawi, the father, are from Country E.  The mother came to Australia in July 2015 with their oldest children, B (born in 2004) and C (born in 2008) to study.  Initially the father also came to Australia, although he returned to work in Country E shortly after.  In 2016 they had another child, D, born in Australia.  The father came to Australia for his birth before returning to Country E.

3. Initially the mother came to Australia on a student visa.  She has subsequently sought a protection visa.  The circumstances surrounding that application are controversial and form the context for the current dispute between the parties.  Initially the application was made on the basis of a problem between the mother and the Country E government.  Subsequently, an issue about the relationship between the parents was introduced. They are now in dispute over whether their relationship was characterised by violence, and about whether their relationship came to an end in October 2016 or continued as late as February 2016, when the father returned to Australia.

4. His return to Australia came as a surprise to the mother.  She expressed fear both that he would kill her and that he would remove the children from Australia.  He expressed a concern as to what had happened to their relationship and a desire to return to Country E with the children and with the mother.

5. The father had the children in his care from 7 to 19 February 2017.

6. The mother commenced proceedings in the Federal Circuit Court and was granted ex parte orders preventing the removal of the children from the Commonwealth of Australia on 9 February 2017 by Judge Tonkin.  Subsequently a recovery order was issued.  Following the return of the children on 20 February 2017, orders provided for the father to have telephone contact with the children.    The case was subsequently transferred to the Family Court of Australia.

7. In the immediate lead-up to the interim hearing by agreement the father spent unsupervised time with the children.

8. At the commencement of these proceedings counsel for the father sought three things:

   a)An order for the expedition of the hearing of this matter;

   b)A summary referral to the courts of Country E; or in the alternative

   c)An order that the children either live with the father or spend substantial and significant time with him, pending a further hearing in this Court.

9. The mother sought that the matter remain in this court for determination, and sought orders that allowed for the father to have daytime periods with the children three times per week.

10. The application for a summary referral to the courts of Country E was withdrawn on it becoming apparent that there is trial time available to conduct a full hearing of the matter on 21 August 2017.  It was, however, noted for the father that one of the outcomes that may be sought at trial is that, following a hearing of the matter in Australia, an application may still be made to have the matter referred to the courts in Country E on the basis that it will be in the children’s best interests for it to be determined in such a manner.  This possibility was indicated to be open, although extraordinary, by Mason CJ, Toohey, and McHugh JJ in ZP v PS[1] at 649. 

    [1] (1994) 181 CLR 639.

11. After the withdrawal of the application for summary referral it was the position of all of the parties that a summary referral is not to be made. 

12. This meant that the contest between the parties today related to the time that the father would spend with the children pending this hearing.  This was firstly as to whether or not the children ought to live with the father (a reversal of position) which was a position that counsel for the father conceded was a difficult case to be made out.  In the alternative, the father sought that he have substantial and significant time including overnight time with the children.  The mother’s position (having conceded that since the last time the matter was in Court on 3 May 2017 the father had spent unsupervised time with the children by agreement) was that the father ought to spend day-time only periods with the children each Tuesday, Friday and Saturday. 

13. The Independent Children’s Lawyer’s position was that absent detail of how the father would care for the children he should have frequent daily time.  While the mother had proposed that he should have Tuesdays and Fridays between 4pm and 6pm and Saturdays between 12pm and 6pm, the Independent Children’s Lawyer proposed that he should have each Tuesday and Friday between 4pm and 6pm with the children, along with Saturdays for the whole day with the older children but 12pm to 6pm with the youngest child. 

Materials relied on

1. The applicant mother relies on:

   d)An affidavit affirmed by Ms Hadrami on 8 May 2017, supported by an affidavit as to its translation affirmed by her solicitor Paul Smith on 8 May 2017.

   e)Two affidavits affirmed by Ms Hadrami on 8 February 2017.

   f)Exhibit M1 – documents tagged A and B, as extracted from the documents subpoenaed from Child and Youth Protection Services.

2. The respondent father relies on:

   a)An affidavit affirmed by Mr Sahrawi on 2 May 2017, supported by an affidavit as to its translation affirmed by his solicitor Ms F on 2 May 2017.

   b)An affidavit together with a folder of exhibits affirmed by Mr Sahrawi on 4 April 2017.

   c)Annexure SIHI of the affidavit of the mother dated 8.5.2017

   d)Exhibit F1 - documents tagged 1 – 6, as extracted from the documents subpoenaed from Child and Youth Protection Services.

3. With the consent of the parties the Independent Children’s Lawyer advised from the bar table that she met with the children two weeks ago, with B saying that she would like to live with her father and C stating he would like to live with the mother.  It is understandable that at this stage the Independent Children’s Lawyer was unable to provide this in a complete form.  It was however absent any context and did not set out the terms of the interactions.  No reasoning on the part of either child was given. Despite the consent of the parties for the Independent Children’s Lawyer to give this information, it does not form a part of the evidence in the proceedings[2].  Even if it had, it was not in a form that would have permitted any reliance upon it.

   [2] It was not put before the Court as an agreed fact pursuant to s191 of the Evidence Act 1995, nor did either of the parents concede the content as an admission, nor was it a matter for which a waiver of the rules of evidence could be given pursuant to s190 of the Evidence Act 1995.

4. Each of the parties sensibly acknowledged that in the context of interim proceedings many of the facts asserted by each of the parties were the subject of contest and unable to be resolved at present[3]. 

   [3] Goode v Goode (2006) FLC ¶93-286 at [68].

5. The two key factual matters previously raised by the mother relate to the father presenting as a risk to her and a risk that he would remove the children from the Commonwealth of Australia.  The second of these risks has been answered by the orders made by Judge Tonkin on 9 February 2017 that restrain each of the parents from removing the children from Australia and place the children on the  Family Law Watchlist.

6. The key factual matters raised by the father relate to whether the mother is neglecting the children and the value of him spending time with the children.

7. In support of his applications both to have the children live with him, or in the alternative spend substantial and significant overnight time with him, the father relied heavily upon material produced on subpoena from the office of Child and Youth Protection Services (CYPS), portions of which were exhibited at F1. 

8. These were firstly (tag 1) comments made by the eldest child, B, to an unknown person (redacted) on or about 10 February 2017 reporting that the mother has been away from the home every day for the past four months, would return home for five to ten minutes in the afternoon and then stay at a friend’s place overnight, leaving B to take care of her two siblings (one of whom is a baby).  It was noted that these assertions were made by B in the presence of her father.  Under those circumstances, an unknown context for the comments both as to who the comments were made to and how it came to be that the comments were made, it is premature for me to draw conclusions that the mother behaved in a fashion as described by B.  The inability to draw firm conclusions does not necessarily end the matter as it is necessary for the court to give consideration of questions of risk.[4]  There are, however, further matters that tend against a conclusion of current risk of neglect on the part of the mother.

   [4] Deiter v Deiter [2011] FamCAFC 82 at [61].

9. The second item was tag 2 which was an assertion made by the mother to staff at CYPS on 13 February 2017, notably hindered by a language barrier, that the father is “kindly” to the children and does not hurt them.  This is potentially significant as it is a representation by the mother to a third party that positively refers to the father’s parenting.

10. Tag 3 related to observations that C, as at 23 February 2017, had scratches on the back of his neck that he attributed to his older sister while she was looking after him.  There was a further report that when he was using a knife to cut cardboard his sister had taken it from him and scratched him on the arm.  These interactions between the brother and sister were not such as to enable me to draw a conclusion adverse to the care arrangements put in place by the mother for the children.  They were consistent with isolated interactions between the siblings as well as with possible systemic neglect.  They do not advance the issue of neglect on the part of the father due to their ambiguity.

11. Tag 4 was an entry of 23 February 2017 wherein the mother explained to CYPS that she had fears for her safety from the father, was concerned that the father would “bribe them into wishing to return to [Country E]” (the children), but at the same time asserted that she had no fears of violence towards the children by the father.  This is a matter of strong significance.  At a time where the parties were in dispute, had commenced litigation and the mother was being critical in relation to the father’s parenting, she positively asserted that he is not a risk to the children.

12. Tag 5 is an entry from 14 February 2017 to the Red Cross wherein the mother indicated that she was from a religious background but no longer wished to practice that religion.  I am unclear what bearing this matter was to have on the resolution of the interim proceedings.  No particular submission was addressed to it.  I draw no conclusion in relation to it. 

13. Tag 6 was an entry of 25 February 2017 wherein the mother alleged that the father had been verbally and physically abusive to her in Country E.  I was asked to infer from a lack of specific reference to sexual abuse an inconsistency between this assertion and other assertions that the mother has made of having been sexually assaulted by the father in Country E.  I am unable to draw a conclusion that it is either inconsistent (sexual abuse is a form of physical abuse) or if it was inconsistent what conclusion might be able to be drawn from that at this stage of the proceedings.  The nature of the allegations of sexual abuse in this case is such that they are unable to be resolved at an interim stage.  This attack on the mother’s credibility is on untested evidence, is ambiguous at face value, and falls into the category of “matters relating to the merits of the substantive case where findings are not possible.”[5]

    [5] Goode v Goode (2006) FLC ¶93-286 at [68].

14. The father asserted that on occasions where one might expect the mother to be frank and forthright with CYPS regarding the faults of the father, that she had asserted that she had no fears of violence towards the children.  Given that one of those assertions (tag 4) was in the context of complaints that the father might try and cause the children to wish to go back to Country E, that is a circumstance where she was critical of the father to CYPS yet positively asserted that he did not present as a risk of violence to the children, this submission has significant weight. 

15. Given the mother’s position in the interim proceedings that the father should spend unsupervised time with the children, which is consistent with her representations as to an absence of risk as set out above, the question of risk accompanying the father spending time with the children (now that the issue of removal has been dealt with) does not appear to be live.

16. The father also sought to rely upon inconsistencies between the mother’s visa application of October 2016 as annexed to her affidavit wherein there was no history of violence described in relation to the father.  In answer to this the mother’s affidavit material asserts that she had no understanding that it was a relevant consideration for her application for a visa to record violence on the part of the father.  

17. The father also tendered colour versions of exhibit BIS11 being texts of an intimate and sexual nature said to have been passed between the father and the mother.  These were said to have occurred as late as January 2017 (well after the mother says their relationship was ended) and could potentially have a significant impact upon the ultimate hearing of the case.

18. However, each of these two matters again fall into the category of relating to the substantive merits of the case and do not advance the issues on the interim hearing.

19. Given there is no opposition to the father spending unsupervised time with the children, the most significant matter for the father on the resolution of the interim matter dissolved down to the question of whether or not it could be said that the mother neglected the children, justifying a reversal of the current position where she is the primary carer. 

20. The key evidence relied on by the father is that referred to at tag 1. For the reasons indicated previously, I am unable to come to a determination that the children are at risk of neglect on the basis of what B is reported to have said to an unknown person in the presence of her father, as recorded on the CYPS records. 

21. The further evidence as to neglect lies in the father’s criticism of the condition of the home on his most recent arrival from Country E.  The mother made strong criticisms of the condition of the home following the father having the children for approximately 10 days.  These are not matters on which I can reach any conclusions.

22. It is uncontroversial that the mother has been the sole and primary carer for the children for the periods since she moved to Australia in excess of 20 months ago.  By mutual agreement she was entrusted with the care of the children to the extent that she was able to set up residence in a foreign country with the children living with her.  She was left to care for them with the father returning to Country E for extended periods.  This agreed arrangement tends strongly against the notion that the mother would be significantly neglectful of the children.

23. The main opposition on the part of the mother, and the Independent Children’s Lawyer, to the father spending time with the children was an opposition in relation to overnight time on the basis that there is no evidence to establish that he has appropriate arrangements in place for the care of the children.  For example, there is no evidence as to what accommodation he has available to him or what facilities are available to the children.  The second opposition to overnight time put by the mother is that it would give the father greater opportunity to speak to the children about the proceedings or to undermine the mother.

Discussion

1. In determining arrangements on an interim basis I am obliged to follow the statutory process.  In these interim proceedings each party asserts that the other has engaged in family violence towards that party.  The mother asserts that the father has made threats to kill her.  The father asserts that the mother has behaved in a coercive fashion towards him, threatening various measures that would potentially see him removed from the country and unable to spend any time with his children whatsoever.  Each of their descriptions sets out reasonable grounds for believing that family violence has taken place.

2. Section 61DA states as follows:

   Presumption of equal shared parental responsibility when making parenting orders

   (1)  When making a parenting order in relation to a child, 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.

   Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)  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:

   (a)  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

(b)  family violence.

(3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

1. That is, it requires an assessment of whether there are reasonable grounds to believe that, in this case, the parent of a child has engaged in family violence.  The identification that there are reasonable grounds does not require forming the view that family violence has occurred, merely that there is a proper evidential basis from which it could, if accepted, support a finding that family violence has occurred.   This conclusion then renders the presumption of equal shared parental responsibility inapplicable.

2. In this case, the descriptions given by each of the parties, as yet untested, present an evidential basis upon which it would be open to conclude that there has been such family violence. This renders the presumption of equal shared parental responsibility inapplicable.  The consideration of the proper arrangements for the children is thereby not constrained by the application of s65DAA.

3. Given the matters raised by the parties in these interim proceedings, the critical section 60CC considerations relate to the benefits of meaningful relationships (60CC(2)(a)), the nature of the relationships between the children and the parents (60CC(3)(b)), the likely effect of a change in circumstances (60CC(3)(e)) and the capacity of each of the parents to provide for the children’s needs (60CC(3)(f)).  Given the interim nature of these proceedings there is little direct evidence about these matters.

4. The mother has been the primary carer of the children since she came to Australia by the agreement of both of the parties.  She has been entrusted with that role, presumably because the parties recognise that she was suitable to undertake that role.  The evidence discloses that the mother has secured accommodation at a refuge.  By virtue of the father living in Country E and the mother living in Australia, the children have had only limited time with their father for the past 20 or so months.  In particular the youngest child has spent very little of his life with his father.  Under those circumstances, it is appropriate that pending a formal hearing that will take place shortly the mother should continue in the role as primary carer for the children.

5. Part of the father’s evidence was that during a period of time that he had the full care of the children, a period of approximately 10 days leading up to 19 February 2017, there were occasions where he thought it necessary to contact the mother for her to spend time with their youngest child.  He complained that she had declined to do so.  Without being able to ascertain whether or not the mother declined to spend time with their youngest child the assertions can at least be taken as a concession on his part that the youngest child may require a different arrangement to the other children who are more familiar with their father.

6. Given both the concessions made to CYPS about the children being safe with the father, along with the position of the mother and the Independent Children’s Lawyer that there should be frequent unsupervised time, the children ought to spend frequent unsupervised time with their father. 

7. While there is no evidence as to the father’s current living arrangements, the evidence presented by the father at BIS 1-7 discloses that he had taken significant steps to support the family in Australia while he was still in Country E.  It is reasonable to infer that he takes the responsibility for properly caring for his children seriously and is likely to continue to do so. 

8. Despite the gap in the evidence as to what particular living arrangements he might have in place that would be suitable for the children to have overnight time, there is no reason to assume that he would not make appropriate arrangements for the children if orders were made for them to spend overnight time with him.  His history of support for the family, and the efforts he has gone to in order to preserve a relationship with the children in travelling to and remaining in Australia, leads me to infer that he would make appropriate arrangements.

9. Orders are in place that provide for the children to live with the mother, restrain the parents from removing the children from Australia and place the children on the Family Law Watchlist (orders of Judge Tonkin of 9 February 2017).

10. I was not asked to discharge the injunctions contained regarding the mother’s treatment of the children contained in Judge Tonkin’s orders of 20 February 2017 and will not do so, however the requirement for a recovery order has now ended, as, with the making of trial directions, has the need for a reportable child inclusive conference.  As the orders for time with the children will require the father to attend at the children’s schools for collection of the children, the current restraints will be discharged insofar as is necessary to allow that to occur.  Given the nature of the face-to-face time that will be ordered, I will discharge the order for telephone communication.

11. Orders will be made that provide for a frequency in time close to that sought by the Independent Children’s Lawyer, but providing for a period of overnight time for the older two children each week.

12. Directions will be made to prepare the matter for trial commencing on 21 August 2017.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 May 2017.

Associate: 

Date:  22 May 2017