Haillet & Ghalayini

Case [2023] FedCFamC1F 509

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Haillet & Ghalayini [2023] FedCFamC1F 509  

File number(s): SYC 4069 of 2023
Judgment of: CHRISTIE J
Date of judgment: 23 June 2023
Catchwords:  FAMILY LAW – CHILDREN – INTERIM PARENTING ORDERS – Critical Incident List -  With whom a child lives –  Parental responsibility – Best interests of child – International relocation –  Where the child’s mother has recently died –  Where the child’s father is incarcerated at the time of hearing – Father charged with numerous domestic violence-related offences against the now-deceased mother – Father unable to exercise parental responsibility due to incarceration – Where the father has notice of proceedings but does not take an active part in the hearing – Application by the maternal family to have sole parental responsibility and for the child to reside with them overseas – Competing proposal of the paternal family to have sole parental responsibility and for the child to reside with them in Australia –  Intervention by the Secretary, Department of Communities and Justice – Where there are concurrent proceedings in the Children’s Court of NSW – Where the Department of Communities and Justice consents to proceedings in the Federal Circuit and Family Court of Australia (Division 1) – Where the Department of Communities and Justice support the applicant’s proposal – Where the child has a close and loving relationship with the paternal grandmother – Sufficient evidence that the paternal family is unable to shield the child from harm – Concerns regarding the paternal family’s capacity to provide the child with therapeutic and psychological assistance – Where the child appears to have a close relationship with the maternal family – Where the memory of the mother is more likely to be protected and promoted in the household of the maternal grandparents – Evidence that the maternal family is attuned to the needs of the child – Best interests of the child for the maternal grandparents to be allocated parental responsibility for the child – Best interests of the child to reside with the maternal grandparents.  
Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 61DA, 64C, 65Y, 69ZK

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 43, 44, 173

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Sayer v Radcliffe (2012) 48 Fam LR 298: [2012] FamCAFC 209

Division: Division 1 First Instance
Number of paragraphs: 112
Date of hearing: 22 June 2023
Place: Sydney
Counsel for the Applicants: Mr Widjaja
Solicitor for the Applicants: Tee Legal
Solicitor for the First Respondent: Did not participate
Counsel for the Second Respondent: Mr Cairns
Solicitor for the Second Respondent: Future Legal
Counsel for the Intervener: Ms Mahony
Solicitor for the Intervener: Crown Solicitors Office

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AGLC
Haillet & Ghalayini [2023] FedCFamC1F 509
Case
[2023] FedCFamC1F 509
Decision Date

CaseChat Overview and Summary

In the case of Haillet & Ghalayini, the court was asked to determine the best living arrangements for a young child following the death of the child's mother and the incarceration of the child's father. The maternal grandparents sought orders for the child to live with them, while the paternal grandmother sought orders for the child to reside with her, and for electronic communication to be allowed between the child and the paternal grandmother. The Secretary of the Department of Communities and Justice intervened in the matter, highlighting the potential need for the child to be placed in foster care if no other arrangements were made. The court was tasked with weighing the competing interests of the various parties and determining what would be in the child's best interests.

The central legal issue before the court was whether the child should reside with the maternal grandparents or the paternal grandmother, and if so, what arrangements should be made for communication between the child and the paternal grandmother. The court had to consider the competing proposals of the maternal and paternal grandmothers, as well as the interests of the child, in light of the statutory provisions governing parenting orders. The primary considerations under the relevant legislation are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm, with the latter consideration being of greater importance.

In reaching its decision, the court considered the child's best interests, taking into account the evidence presented and the applicable statutory provisions. The court noted that the child had recently lost his mother and had family in Country B who he had met and spent time with. The court also acknowledged the importance of the child maintaining a relationship with the paternal grandmother, as well as the need to protect the child from potential harm. Ultimately, the court determined that it was in the child's best interests for him to reside with the maternal grandparents, with orders made for electronic communication between the child and the paternal grandmother.

The court made orders that the child reside with the maternal grandparents and that they have parental responsibility. The court also made orders for "liberal" electronic communication between the child and the paternal grandmother. These orders were made in accordance with the statutory provisions governing parenting orders, with the court giving due regard to the competing interests of the parties and the child's best interests.

Orders

Orders of the court

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Background

Background to the litigation

The Secretary of the Department of Communities and Justice, as intervener, relied on:(a)Notice of Intervention by Person Entitled to Intervene filed 15 June 2023;(b)Affidavit of Ms F filed 19 June 2023; and(c)Affidavit of Ms G filed 19 June 2023.BACKGROUND This matter comes before the court in circumstances where the child’s mother died in 2023. The child’s father is currently incarcerated. Orders have been made in the Children’s Court of New South Wales and the child has been placed by the DCJ with the maternal grandfather. A Child Impact Report was ordered and the Court Child Expert interviewed the father (by phone), the maternal grandmother in person (with an interpreter), the paternal grandfather in person and the paternal aunt in person. She also conducted an observation with the child. Her report is in evidence. The maternal grandparents were represented in the proceedings. The paternal grandmother and father were represented by the same firm. Counsel for the paternal grandmother told me that while the paternal grandmother preferred to have an interpreter when she was interviewed for the Child Impact Report or if she were to be cross-examined she was content to listen to the hearing in English and able to provide instructions if required. The father has had notice of the proceedings. The father’s counsel indicated his solicitor had been unable to take instructions for an affidavit and so while his position was clear from both the Child Impact Report and the Response he did not take an active part in the interim hearing. Accordingly, counsel who appeared, appeared in the interests of the paternal grandmother.THE LAW Applications for parenting orders including interim parenting orders are governed by Part VII of the Act. Section 64C of the Act provides that parenting orders may be made in favour of parents or other persons. The Act gives standing to necessary parties (parents) and to persons with an interest in the care, welfare and development of the child. It is possible to make parenting orders in favour of third parties including persons who are not parties to proceedings: Bondelmonte v Bondelmonte (2017) 259 CLR 662, [49]-[52]. The Act provides that in deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration. In order to determine what parenting orders will be in the best interests of the child regard is to be had to those matters in s 60CC of the Act which are applicable to the specific circumstances of the child. It is important to understand that s 60CC of the Act is divided into two parts - primary considerations and additional considerations. The primary considerations are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and (b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.Importantly, pursuant to subsection (2A), in applying the considerations set out in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b). That is, that of the two considerations the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence takes precedence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A case in which it is proposed that a child’s place of residence change is but a specific type of parenting application and as with all parenting applications requires an understanding of the competing proposals. In Sayer v Radcliffe (2012) 48 Fam LR 298, the Full Court stated:[47]It is a now well-established principle that, while some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders.[48]A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.(Citations omitted)CONSIDERATION I asked the parties and the intervenor to clarify their position as at the interim hearing. The applicants asked the Court to make orders as set out in their application but also indicated that they would support an order for electronic communication between the child and the paternal grandmother if she was unsuccessful in her application for the child to live with her. The respondent paternal grandmother indicated she sought the orders in her interim application but not an order about the father’s time, at this stage. She indicated that she agreed to orders which provided for “liberal” electronic communication. Her counsel confirmed that if the child were to be living with the maternal grandparents then the paternal grandmother sought orders for electronic communication. The paternal grandmother said she would accept the supervision of the DCJ. The intervenor outlined the three options available to the Court as follows:(1)That the child reside with the applicants and that they have parental responsibility;(2)That the child reside with the respondents and that they have parental responsibility;(3)That the Court make no order which would leave the parental responsibility for the child with the Minister for Communities and Justice but also see the Minister exercise that parental responsibility (at present) to place the child in foster care. At the beginning, it is worthwhile indicating what are agreed or uncontested facts in the proceedings relevant to the exercise of my discretion. The child is a young child who has recently lost his mother with whom he lived. The child has family in Country B who he has met and spent time with. Specifically, he has an aunt, grandmother, step-grandfather and cousins and as well as extended maternal family. In 2019 following the child’s birth the maternal grandmother travelled to Australia to spend time with the child and her daughter and did spend time with them. In 2022 the maternal grandparents purchased flights for the mother and the child to travel to Country B. The following month the mother and the child travelled to Country B and spent time with the maternal grandparents and extended family.