Haillet & Ghalayini
[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 ORDERS
SYC 4069 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HAILLET
First Applicant
MS STOICA
Second Applicant
AND: MR GHALAYINI
First Respondent
MS GHALAYINI
Second Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
order made by:
CHRISTIE J
DATE OF ORDER:
23 JUNE 2023
THE COURT ORDERS THAT:
1.Commencing upon the expiry or discharge of the current child welfare order made by the Children's Court of New South Wales in mid-2023:
(a)Mr Haillet and Ms Stoica have parental responsibility for the child X born 2019;
(b)X live with Mr Haillet and Ms Stoica;
(c)Mr Haillet be permitted to remove X from the Commonwealth of Australia.
(d)That the maternal grandparents facilitate video communication between Ms Ghalayini and X on one occasion per week.
2.This matter is listed for case management hearing by Microsoft Teams at 2:15 pm on 13 July 2023.
3.That pursuant to s 62G of the Family Law Act 1975 a Court Child Expert prepare a Family Report.
4.Corrective Services are requested to make arrangements to allow the father to participate in the case management hearing, if he elects, by AVL.
NOTATIONS:
A.That the Department of Communities and Justice has offered to bear the cost of a return flight to and from Country B to facilitate face to face time between X and Ms Ghalayini in the next six months.
B.The orders are expected to come into operation today following the matter being listed in the Children’s Court of NSW at 2.00 pm.
C.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
On 8 June 2023 Mr Haillet, the applicant maternal grandfather, filed an initiating application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders in respect of the child, X born 2019 ("the child").
That initiating application also named the child's maternal grandmother Ms Stoica as an applicant (she has filed affidavits) although she has not at this stage been an active participant in the proceedings.
The respondent to the application is Mr Ghalayini, the child's father.
The second respondent is Ms Ghalayini, the child's paternal grandmother.
At the request of the Court, the Department of Communities and Justice (“DCJ”) were invited to intervene and on 15 June 2023 filed a Notice of Intervention by Person Entitled to Intervene and consequently became party to the proceedings.
On 9 June 2023 these proceedings were transferred from the Federal Circuit and Family Court of Australia Division 2 to the Federal Circuit and Family Court of Australia Division 1 and listed for mention on 14 June 2023. When the matter was listed on 14 June 2023 counsel appeared on behalf of the applicant and the Crown Solicitors at that stage, appeared as a courtesy to the Court on behalf of the DCJ. Directions were made on that day for consideration of whether or not consent would be given by the DCJ to the continuation of these proceedings in circumstances where I was informed that orders had been made in the Children's Court of New South Wales.
That consent has been forthcoming. On the day of hearing, I was provided with written notice of consent to this Court's jurisdiction pursuant to s 69ZK of the Family Law Act 1975 (Cth) ("the Act"). Accordingly, the application for interim parenting orders comes before the Court.
The intervenor has taken steps to bring their proceedings to the attention of the father and interested persons.
The applicant relied on the following documents:
(a)Initiating Application filed 8 June 2023;
(b)Affidavit Addendum of Ms Stoica filed 22 June 2023;
(c)Affidavit of Ms Stoica filed 21 June 2023;
(d)Affidavit of Mr Haillet filed 19 June 2023;
(e)Affidavit of Ms C filed 19 June 2023;
(f)Affidavit of Mr Haillet filed 16 June 2023;
(g)Affidavit of Mr Haillet filed 8 June 2023;
(h)(Further) Affidavit of Mr Haillet filed 8 June 2023;
(i)Notice of Child Abuse, Family Violence or Risk filed 8 June 2023;
(j)Parenting Questionnaire filed 8 June 2023; and
(k)Genuine Steps Certificate filed 8 June 2023.
The respondent paternal grandmother relied on the following documents:
(a)Response to Final orders - unfiled but in the same terms as that of the father;
(b)Affidavit of Ms Ghalayini filed 21 June 2023;
(c)Affidavit of Ms D filed 21 June 2023;
(d)Affidavit of Ms E filed 21 June 2023;
(e)Notice of Child Abuse, Family Violence or Risk filed 21 June 2023; and
(f)Genuine Steps Certificate filed 21 June 2023.
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.
Section 60CG of the Act requires the Court to consider the risk of family violence:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
It is important to understand that parenting orders may deal with where a child is to live including with whom a child is to live and also who is to have decision making responsibility (parental responsibility) in respect of a child. Parental responsibility, absent order, is held by the parents of a child. Any person may obtain an order for parental responsibility from the court. Section 61DA of the Act provides when making a parenting order in relation to a child the court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility:
(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.
These are interim proceedings and accordingly are conducted in a curtailed fashion without cross examination. Accordingly, the procedure to be followed is that set out by the Full Court in the matter of Goode and Goode (2006) FLC 93-286:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even if the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
It is accepted that in interim proceedings which contain evidence relating to risk, the fact that findings may not be possible does not mean that questions of risk are dismissed. In Marvel & Marvel (2010) 43 Fam LR 348 (cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), their Honours observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
These proceedings deal with an application to take a child outside Australia. Section 65Y of the Act provides that it is an offence to take a child outside of the country except with consent or by reason of a court order. Making an order permitting a child to be taken outside of Australia is a parenting order and accordingly the best interests principle will apply.
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.
The child has been cared for by the paternal grandmother, at the request of his parents, for significant periods including overnight.
Documents which have been in evidence in these proceedings from the police indicate that in 2023 the father was named as a person of interest in respect of a breach of apprehended violence order. In that month, various offences against a person, breaches of apprehended violence orders, malicious damage and warrant are recorded.
On two occasions in 2022 the father was listed as a person of interest in respect of an apprehended violence order. On the latter date he was named in respect of a domestic violence episode where the records indicate child/young person at risk. In 2021 he was named in respect of another domestic violence episode. At this stage I only have limited records available to me which record over 15 domestic violence related charges between 2021 and 2023.
The Court was provided with information by the DCJ that suggested that in 2022 when the child was screened in for risk of serious harm (physical abuse: risk of significant physical harm) and in 2023 screened in for risk of serious harm (duplicate parental risk factor/domestic violence) and in 2023 there was removal of the child pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) without a warrant, assumption of care responsibility of a child by the Secretary pursuant to s 44 of the Care Act, and an order for the medical examination of a child in need of protection pursuant to s 173 of the Care Act.
I have read and considered the evidence filed by each of the parties in the proceedings and the intervenor and considered the independent evidence of the Court Child Expert. That evidence informs my consideration of the matters in the Act.
This is a case where there is no presumption that parental responsibility should be shared. Not only because these are interim proceedings but because the presumption is rebutted. This is a case where parental responsibility should be exercised by the person or persons with whom the child is living. The current Children’s Court order is an interim order made in mid-2023 which placed the child under the parental responsibility of the Minister for Families and Communities (“the Minister”).
The making of that order brought to an end to the parental responsibility which the father has at law. The orders which I make will (with the consent of the Minister) will be designed to come into effect as a replacement for the existing order in compliance with s 69ZK of the Act.
The father, through his lawyers, recognises that he is not in a position to seek or exercise parental responsibility and supports his mother’s application for parental responsibility.
The maternal grandfather seeks an order for parental responsibility in favour of himself and his wife, the maternal grandmother.
Neither party seeks an order that parental responsibility be shared, equally or otherwise. Accordingly, I propose to make an order for parental responsibility in favour of the person or persons with whom the child will live. This is, in the circumstances, the order which will best meet his needs and promote his interests.
It is necessary to examine the competing proposals for living arrangements.
The applicants seek an order that the child live with them on an interim basis in Country B. The respondents seek an order that the child live with them in Australia. The geographical question, while central, is in one sense not material since the focus of the evidence is on the following major issues: whether one or other of the proposals is better able to shield the child from exposure to harm from being exposed to or subjected to abuse or family violence, the capacity of the parties to meet the child’s needs, the nature of the relationships between the child and the members of each family, the importance to the child of a meaningful relationship with his parents. I will start with a consideration of the evidence which relates to risk of harm because of the importance it is given in the Act.
The evidence filed on behalf of the DCJ dealt in more detail with the available evidence concerning a history of family violence. In the records of the police following the death of the mother it is apparent that a number of reports were made to the police of incidents which occurred in the year leading up to her death. These reports appear to have been made by a third party following the mother’s death but there are reports that come from the mother herself.
In 2022 the material suggests that the child’s mother and father had an argument. The records suggest that this took place in the presence of the child. The narrative used by the police to make the application for the AVO reads:
At approximately 12:00pm […] the PR [the mother] and PN [the father] were intending on taking their son to [an event]. While organising to place their child into the vehicle the PR and the PN became involved in a verbal argument as the PN was yelling at the PR as he wanted her to drive the vehicle. During this argument the PN was aggressively yelling towards the PR, calling her names such as fucking slut and fucking bitch.
The mother made a report to the police at the Suburb H Police Station. As part of that report the police became aware that there had been a long history of what the mother described as domestic violence between her and the father.
Importantly the records state:
The PR informed police that the PN would aggressively yell at her, despite others also being present in their house, including their child. The PR stated that on multiple occasions, the PN mother [the paternal grandmother] would attempt to intervene whilst he was verbally aggressive towards her. However, the PN will then yell aggressively towards his mother.
The PR advised police that she does not currently have any family that lives in Australia and that the PN has stopped her from visiting her family in [Country B]. Over the next four weeks the PR had been attempting to book a trip to see her mother in [Country B]. However, the PN stole her and her child’s passport to not allow her from visiting family. The PN has refused to return these passports.
Throughout the conversation with police the PR advised that the PN had been physical with her throughout the past three years, however, refused to provide specific details in relation to this. The PR also made comments alluding to the PN damaging her possessions, such as her car, however, again refused to provide specific details and did not want to provide police with any statements.
Later, in the police record, it says police visibly observed the PR's [the mother’s] demeanour, while taking the report, in which she could clearly be seen to be visibly intimidated, scared and upset due to the PN's [the father’s] behaviour.
A final apprehended domestic violence order ("ADVO") for the protection of the mother was made in mid-2022.
The paternal grandmother says that the mother informed her at the time that she had sought an ADVO following this verbal argument but that she had now changed her mind. The paternal grandmother says she assisted the mother in trying to have the application withdrawn or the ADVO discharged. The paternal grandmother understood, on the basis of her affidavit evidence, that the mother did not want the father to know she had obtained the order.
As was submitted on behalf of the intervenor, in an interim proceeding, the objective documents assume significance. The police record supports the conclusion that the mother was most reluctant to approach the police and that the verbal abuse was not only taking place in the presence of the paternal grandmother but was also directed to the paternal grandmother by the father. This makes the evidence that she tried to assist the mother to discharge the ADVO more concerning.
The paternal grandmother's evidence does not deal with what or anything she said to her son about these events. The mother's concerns about the verbal altercation (even on the paternal grandmother's account) were sufficient to have her contact the police and obtain an ADVO. The paternal grandmother's concerns appeared to have been to ensure that her son did not get in to trouble.
The timing of the ADVO coincided with the agreed fact that the father had tried to prevent the mother and the child travelling to Country B to visit the maternal family. This is also an example of family violence recognised in s 4AB of the Act.
The mother and the father lived separately and the mother lived with the child following the making of that ADVO.
There are now allegations contained in the material which suggest that other people had witnessed incidents of violence as between the mother and father which had not been previously bought to the attention of police. Those incidents commence with an allegation that in early 2021 the father pushed the mother down stairs causing an injury. In mid-2021 he punched her and pushed her to the ground. In 2023 he is said to have gone through her phone "calling me a dirty slut and he can't wait til he kills me so his mother can raise him [X]." This was said to have occurred in the presence of the child. In 2023 the father is said to have hit the mother and threatened to kill her. Two days later the father is alleged to have called the mother a slut, threatened to kill her and to have choked her causing an injury which was observed by others and caused the mother to say that her tonsils were bleeding. Accepting that I cannot make findings about these incidents I have to acknowledge that if accepted they are serious and pose a significant risk to the child.
I note the maternal grandmother's affidavit records, the mother, having disclosed to her that the father “would often verbally abuse her and call her names to the effect of: ‘slut… Sad white bitch’".
In 2023 the child, the mother and the paternal grandmother had a holiday in Country J. The paternal grandmother says the mother confided in her during this trip that she had met another man. The mother told the paternal grandmother that the father was unaware of this new relationship.
The mother and paternal grandmother returned to Australia. The paternal grandmother says the child stayed with her for seven days - while the evidence is not precise that would appear to be until a Thursday. The paternal grandmother says she did not then hear from the mother until Wednesday. It is plain that this timeline cannot be accurate which caused me to conclude when reading the material that perhaps the dates the paternal grandmother had given for the trip are wrong or the period of time the child stayed with her after they returned was shorter than seven days. Her counsel confirmed it was the seven day stay which was in error. At best, it seems that the child stayed in her care for approximately two nights. In any event on a day in 2023 after the trip to Country J the mother presented at the home of the maternal grandmother with injuries. The paternal grandmother says the mother reported the injury was accidental.
The paternal grandmother says the mother reported having sought medical treatment. The paternal grandmother is silent as to whether she accepted the mother's explanation or was concerned that the injuries were so extensive. The paternal grandmother's affidavit then says it was on the Saturday that Mr Ghalayini discovered the mother deceased.
The material filed by the DCJ suggests that the father attended at the mother's home and there was an altercation between them during which the mother phoned the police. During this argument the television in the mother's apartment was damaged and the records suggest that a witness heard someone saying "you fucking slut" and the mother asking the person to leave. The police records of the mother's telephone call to them at 11:40 pm on that day recalled her having said "he is bashing me", “he is taking all my money from the house…just leave." And the father in the background saying "did you call the police on me?" The child was present during this altercation.
I am able to conclude that it is more probable than not that it was the father that the police could hear because the records say that the father confirmed his attendance at the mother's residence on that day. This is further confirmed by the conversations which members of his family had with the employees of the Communities and Justice. The father told them that, at the mother's request, he left her home around midnight and said she was affected by drugs and alcohol.
Interviews by DCJ workers with the paternal family record that they told DCJ that at some point the next day the parents of the father attended at the mother's home. The paternal grandmother is silent about this in her affidavit.
The father then attended again at those premises on the same day and made a call indicating to the police that he had found the mother deceased. The child is recorded to have said "Daddy get angry and Mummy get dead."
The father has not been charged with causing the death of the mother although he has been charged with the numerous domestic violence and assault offences outlined above. The father has indicated he intends to defend the charges against him and inferentially contends that he is not responsible for the death of the mother. I am not being asked to consider a situation where the child lives with the father so the harm that I am considering is not a direct harm from being exposed to someone who is accused of perpetrating family violence.
The application which the father's family make is that the child live with them. This is only an interim hearing and in the context of a final hearing it would be possible to understand and appreciate the evidence with the benefit of cross examination. One of the issues which will be relevant after consideration of the alleged offences themselves is whether or not the father's family were aware of the allegation that the father had perpetrated violence against the mother and what their view is in respect of the allegations. There is some evidence about this topic at this stage: the DCJ have interviewed the father's brother Mr K who their records suggest resides with the paternal grandparents. I am aware from the paternal grandmother's affidavit that she says Mr K lives in Melbourne as does the affidavit filed by Mr K’s wife. The paternal family say Mr K was only in Sydney because of the arrest of the father. The material refers to a suggestion that Mr K and the paternal grandmother would leave the home of the paternal grandfather to allow the father to be bailed to the home of his father and for the child to live with the paternal grandmother and Mr K - this is seemingly inconsistent with the evidence that he lives in Melbourne. I am unable to resolve this contradictory evidence.
It is plain from the interviews between the DCJ and the paternal family that Mr K believes that his brother is not responsible for the mother's death. However, more significantly the interviews have indicated the attitude which Mr K takes to the allegations of violence. The records suggest that he has said to the DCJ words to the effect "there was just a few little domestic violence incidents", and in a similar vein "the police have nothing, there's just a few little domestic violence incidents in his past".
The DCJ specifically spoke to the paternal grandmother about whether she had any knowledge of abuse within the relationship between the parents and she said that she did not. However, that has to be seen in the light of the allegation that the mother told police in 2022 that the paternal grandmother had been present on occasions where she had been verbally abused and that the verbal abuse was then turned on her. It also has to be seen in light of the fact that the mother had shared with her the fact that she had, as a consequence of that abuse, contacted the police. As discussed above she knew the mother had sought and obtained an ADVO and sought to assist her in having that order discharged. The Court Child Expert asked the paternal grandmother about these matters and opined: "[Ms Ghalayini’s] account may suggest that she is either minimising family violence from [Mr Ghalayini] towards [the mother] or that she is quite naive about matters of family violence."
If the child resides with the paternal grandmother the fact of the allegations concerning his father having been violent to his mother will not be matters which will directly expose the child to potential violence by his father although there is some controversy about the paternal grandparents' position regarding a proposed bail application. Ms F, a Child Protection Triage & Response Manager Caseworker employed by the Department of Communities and Justice, records in an affidavit affirmed in these proceedings:
10. [In mid-2023], I received an update from [Ms G] and DCJ Caseworker [Mr L] following their visit to the paternal grandparents and paternal uncle [Mr K]. [Ms G] and [Mr L] reported to me that they had observed [X] in the home, that [Ms Ghalayini] had stated that she was not aware of any previous violence between [Mr Ghalayini] and [the mother], and that [Mr Ghalayini] was due to have a bail hearing the following day […]. [Ms G] reported to me that the paternal grandparents indicated that if the father was granted bail, that [X] would be placed first and that [Ms Ghalayini] would care for [X] at the paternal grandparents’ home, with [Mr Ghalayini] to be bailed to an alternative address …
…
12. The following day at around 3:30pm, I received a phone call from [Ms G]. [Ms G] informed me that she had spoken to NSW Police [Officer M], who reported to her that [Mr Ghalayini’s] bail application had been refused that morning. [Ms G] further reported that [Officer M] stated that at that bail application, submissions had been made to vary the "no-contact" ADVO currently in place protecting [X] from [Mr Ghalayini], removing the paternal grandparents' address, and proposing that [Mr Ghalayini] be bailed to the paternal grandparents’ home, with [X] and [Ms Ghalayini] to live in alternative accommodation. I am aware that these submissions contradicted what the paternal grandparents had indicated to [Ms G] and [Mr L] the previous day, as outlined above.
The paternal grandmother indicated, through her counsel, that the relief she seeks on a final basis will be dependent on whether the father is convicted of some or all of the existing charges (and/or any subsequent charges). This position indicates that she does not accept that the father’s alleged conduct is a risk or she has closed her mind to the possibility that it is a risk. The Notice of Child Abuse, Family Violence and Risk filed in her case denies any risk and provides no information about possible risks. Her position raises concerns about her insight and capacity to place the child ahead of other family members.
In considering whether one or other of the proposals may expose the child to the risk of harm which comes from being exposed to family violence it is necessary to have regard to the concerning evidence about the interaction between the paternal grandmother and paternal grandfather.
When the child was assumed into care, two employees from the DCJ attended with police to collect him from the home of the paternal grandparents. The paternal grandmother was understandably and appropriately distressed but ultimately assisted the DCJ workers to prepare the child. As he was leaving, the DCJ workers witnessed an interaction between the paternal grandparents which they record in their affidavit:
30.[Ms Ghalayini] started to walk back to the house on the front lawn and I remained standing at the back of the car. At this time, [Mr N] approached the paternal grandmother on the front lawn and I heard him say words to the effect of, "You fucking slut, you can go too. I don't want you hear, this is all your fault. I will kill you". I observed that [Mr N] appeared angry in his demeanour and that his voice was loud. I observed [Mr N] to be waving his arms at [Ms Ghalayini], as he was speaking. I observed [Ms Ghalayini] grab the lapels of her dressing gown to her chest, physically retreat from [Mr N] and say words to the effect "Why me? What did I do?”. As this happened, I observed [Ms Ghalayini] walk towards the opposite side of the road, where the Police Tactical officers were standing in front of their vehicle. It appeared to me that [Ms Ghalayini] was attempting to reason with [Mr N] and understand why he was angry with her. At that point, two Police Tactical officers moved to stand on the front lawn with [Mr N]. At this point, one of the NSW Police Tactical Officers spoke to me and said words to the effect “you need to go”. I entered the car where [X] and [Ms P] were already sitting and drove away.
31.On the way to the carer, we stopped in the carpark of a nearby McDonald's to check on [X’s] belongings that were in the boot of the car. [Ms P] exited the car to check the belongings while I waited in the car with [X]. During that time, [X] stated to me words to the effect of, "I don't love Mummy, I love Daddy." I made eye contact with [X] through the rear vision mirror of the car and responded words to the effect of, "Oh really, someone told me that Mummy loves you and Daddy loves you." I asked [X] where Mummy and Daddy (the mother and the father) were, and [X] stated words to the effect of: "Mummy is on holidays and Daddy is at work." [X] did not make any further comments about this topic after that. I spoke to [X] about the dinosaur slippers he was wearing and [X] appeared to be excited about this topic and started to make "roaring" noises.
32.[Ms P] then returned to the car and we continued on our drive. During our drive, [Ms P], [X] and I discussed lights on the streets, the colours of the buses we passed and dump trucks. During the drive, [X] and I had another exchange to the following effect:
[X]: "Why was [the paternal grandfather] angry?"
Me: "What do you mean?"
[X]: "[He] was angry and was yelling at [the paternal grandmother]."
Me: "Do you mean when we left their house?"
[X]: "Yes".
Me:“I think he is very upset, but you are okay, and there are other people there who will help him”
…
38.[In mid-2023], I received a phone call from [Officer Q], who informed me that [Mr N] continued to be verbally angry towards [Ms Ghalayini], said it was her fault, and threatened to burn the house down. [Officer Q] advised that he was able to calm [Mr N] down and re-enter the home; they then called their adult sons ([Mr K] and [Mr R]) who able to calm [Mr N] further. [Officer Q] spoke with [Ms Ghalayini], who stated that she did not feel unsafe to stay at the home for the night and that [Mr N] often becomes angry verbally but has never hit her. [Officer Q] said he told [Ms Ghalayini] that if she was to feel unsafe at any time in the night, to call police, which the paternal grandmother agreed to do. When he left the property, both the paternal grandparents were calm.
I accept, without hesitation, the submission on behalf of the paternal grandmother that her husband is likely to have been stressed when the child was removed and that this stress may have provoked an inappropriate reaction. This does not explain why his anger was directed at his wife in such extreme, derogatory, abusive and aggressive terms. It does not explain his blaming her nor does it explain his threats to burn down the house or kill her. His use of the expression “slut” echoes the many places in which the father is said to have used this language about the mother.
The paternal grandmother did not squarely address this incident in her affidavit material. There is no evidence from the paternal grandfather at all. The absence of evidence from them about this leaves me in a position where I accept the uncontested evidence of the police and DCJ workers as set out in the affidavits and attachments.
The paternal grandmother denies “any allegation of family violence in her household”. It may be that she did not classify what was witnessed as family violence or that she saw it as a product of the understandably stressful situation the paternal grandfather was experiencing. If it occurred as the witnesses set out it certainly meets the definition in s 4AB of the Act.
Whilst I am not in a position to make a determination as to the accuracy and veracity of the allegations of violence as between the parents I am obliged to consider what that evidence means in terms of a risk to the child if in due course those allegations are demonstrated to be accurate.
There is sufficient evidence to cause me concern that the paternal family are not up to the task of protecting the child from harm, namely the evidence about what has occurred in the child’s short life between his parents and the potential that the paternal family had some knowledge of this but did not act protectively in respect of the child but instead seemed to be acting in a way which was protective to the father.
THE NATURE OF X’S RELATIONSHIP WITH MEMBERS OF HIS FAMILY
First, I consider the nature of the child’s relationship with his father. There is not a great deal of evidence about this topic but there is some evidence to suggest that notwithstanding the fact that the parents were separated, the child continued to enjoy a relationship with his father whilst living with his mother. Some of that evidence comes from the reports from the childcare centre to the DCJ that suggest that while the child’s mother was responsible for delivering him in the morning it was the child’s father who generally collected him in the afternoons. This was at a time he was attending childcare twice a week.
The father told the Court Child Expert that he proposes that the child live with him on a final basis. Whether this is a possibility or not will need to await determination of the matters with which he has been charged.
There is a current ADVO for the protection of the child from the father and this prevents contact. To the extent that the paternal grandmother's application (as clarified) sought that the father have time with the child supervised, this would be inconsistent with the terms of the ADVO. Ultimately the paternal grandmother did not pursue that relief at this stage. The evidence does not yet permit me to find that same would be in the child’s best interests and so at this stage I decline to make such an order.
The maternal grandparents sought an injunction for the protection of the child. The ADVO is in place and I would not make a further order on precisely the same subject matter.
Ideally the child would have the benefit of a meaningful relationship with his father which would be facilitated by seeing and spending time with him. At present the father's incarceration would curtail such time even if it were thought to be in the child’s best interests. The question of what time (if any) the child should have with his father is one which will depend in due course on the nature of their pre-existing relationship, the impact that having or not having time might have on the child and expert evidence about the benefits and detriments of various forms of time.
Relationship with the Paternal Family
It seems plain that the child has a close and loving relationship with the paternal grandmother. I accept that she has provided loving care to him at the request of the mother for periods including both day time and overnight. While there might be some disagreements about the level of care that she has provided to the child in the past, there is no doubt that the child has spent significant time with the paternal grandmother and that she is an important person in his life.
There is a small amount of evidence about the child’s relationship with the paternal grandfather. During a visit by the DCJ they observed the paternal grandfather to be involved in playing with the child. The paternal grandfather has not filed an affidavit. This is unfortunate since it is proposed by both his wife and son that the child would live in his household. He was also unavailable to be interviewed by the Court Child Expert due to illness. This limits the information available to the Court.
I accept that the child has spent time with his aunts, uncles and cousins in Australia as set out in the affidavits of the aunts and that if he were to live in Country B – even on an interim basis – that would impact on the ease with which he could see them. This is not particularly significant in this case as they all are said to live interstate and have not been a part of the child’s usual routine, at least not on a face to face basis.
Another advantage to the paternal grandmother’s proposal is that the child would remain in Australia and not potentially have to experience multiple changes in his care and place of residence. The financial circumstances of the maternal family (need to return to work and family) do not permit a lengthy stay in Australia pending final hearing. When considering this question of changes, it is necessary to take into regard the real possibility that if the child remains in Australia until a final hearing the risk issues raised in this case, which have already caused DCJ to remove him from the paternal family may lead to a foster care placement in Australia. This is not seen to provide greater stability than a family placement in Country B.
I accept that if I make orders which provide that the child live with the maternal family I expect, on the basis of the evidence, that he will miss the paternal grandmother and this will be a further loss at a time when he needs stability. One of the distinct advantages of the proposal which the paternal grandmother makes is that it would see the child living with a known carer in a known home, the carer being someone who loves him and who he loves. In circumstances where he has lost his mother and is not currently spending time with his father the existing relationship with the paternal grandmother is likely to be a source of comfort to the child.
Whilst the proceedings were before me the DCJ were instructed to propose that if the Court were to consider an order whereby the child lived with the maternal family they would be prepared to provide financial assistance to the paternal grandmother in order to facilitate her having face to face time with the child in Country B.
Relationship with the Maternal Family
Because the child has lived in Australia and the maternal family live in Country B he has not had significant opportunity to spend time with them. It is for this reason that it is remarkable to observe that he appears to have a close relationship with them. As discussed above the maternal grandmother came to Australia after the child’s birth and spent time with the child in Australia. The mother and the child then travelled to Country B last year and spent two months with her family. It is plain that the child has a concrete memory of that time because when the topic of the maternal family was discussed with him by the workers from the DCJ the child spoke to them about being eager to arrive at Grandpa Haillet’s house and they record that every time they referred to Grandpa Haillet he would also speak about Nana (who the case worker assumed was the maternal grandmother). He spoke about the maternal families' dog and remembering the long plane ride to visit them. When he was reunited with the maternal family the caseworkers record that as soon the door was open he saw who it was and he screamed, "Grandpa" and ran up to hug Mr Haillet. The child continued to remain by his side for that reunification visit.
The child’s aunt accompanied the maternal grandfather to Australia and has been assisting with the child’s care since his placement. It is not suggested that the child has a pre-existing close relationship with her but it is to the child’s advantage that the Court Child Expert observed a good relationship in in her interview and recorded "[X] resisted being separated from [Mr Haillet] and [Ms C], which is suggestive he sees them as safe people who provide him with a sense of security."
There are similar observations in the material attached to the affidavits by the intervenors which support the conclusion that the child has a developing attachment to the maternal grandfather and aunt.
CAPACITY
I turn now to consider the question of capacity.
There is nothing in the evidence which suggests that either the maternal or paternal family are not willing to provide for the child’s needs and capable of attending to his care. As discussed above one of the significant disadvantages of the paternal family's proposal is the fact that they do not seem to appreciate the seriousness of the history of violence alleged. It is not as simple as them denying that there has been a history of violence, the comments that they have made tend to suggest that they acknowledge that history but do not understand its consequences nor does the evidence suggest that they have taken active steps to intervene to protect the child. Where this is the case, given what the child has experienced, there is a significant risk involved in allowing him to remain in such an environment.
I also have concerns arising from the evidence about the paternal family's capacity to provide the child with the therapeutic assistance he may require. They initially declined therapeutic intervention on the basis that they had assessed it was not required. The paternal grandmother said, at the hearing, she would accept supervision from the DCJ but for therapeutic interventions to be most beneficial they must have the support of the child’s carers.
The paternal family raised the health of the maternal grandmother as a matter affecting her capacity to provide care to the child. It seems uncontroversial that in 2022 the mother informed the father that the maternal grandmother had an illness. What is more controversial is whether that statement was true. The maternal grandmother said it was an exaggeration of a routine procedure. This occurred in the context where the father had retained the child’s passport preventing the mother's proposed travel. The maternal grandmother said he released it on the mother convincing him that her mother was unwell. The maternal grandmother has provided a letter from her treating medical practitioner. On the material which I have it is more probable than not that the maternal grandmother is healthy and the mother was deceiving the father to persuade him to release the passport. I have no cogent evidence which suggests the maternal grandmother's health will impact on her capacity to care.
One of the issues for the child is about living in an environment which is sensitive to the fact that he has lost his mother. The household of the maternal grandparents is more likely to be one in which the child’s memory of his mother will be protected and promoted than the household in which her memory has been, even in this short time, denigrated by members of the paternal family. This factor is significant in so far as it functions to mitigate the inherent instability of residing in a new country with a family who are not as well known to him.
This is a difficult situation for the child. I am faced with two competing applications: one which would see the child on an interim basis living with the mother's family in Country B and on the other with the father's family in Australia. It will be necessary to consider what, if any, time the child spends probably electronically with the family with whom they do not live and under what circumstances. It is useful in that regard that the DCJ have intervened and I am satisfied that while these proceedings are on foot both parties will have the assistance of the DCJ in keeping an eye on in what arrangements will be in the child’s best interests.
I indicated to the lawyers that if I were contemplating making an order which would permit the child to be removed from the country it would be important that the maternal family gave an undertaking that they would return for the purpose of the final hearing if same were required. They have given such an undertaking. Specifically I was told they would:
(a)Undertake to return to the jurisdiction at the request of the court;
(b)Undertake to appear remotely if permitted by the court;
(c)Comply with orders of the court
(d)Facilitate videoconferencing between the child and the paternal grandmother once a week
(e)Provide information about therapeutic requirements for the child to the DCJ and if relevant school reports.
This case could not and is not being decided on the basis of which family has a better relationship with the child. It must be acknowledged if I make orders that the child live with the maternal family this may mean that he misses out on the opportunity to live with a family member with whom he has an existing close relationship based on regular and frequent contact, namely the paternal grandmother.
Ms G’s affidavit recorded:
16. [In mid-2023], I attended the home of the paternal grandparents and [Mr K] with DCJ caseworker [Mr L], [Ms Ghalayini], [Mr N], [Mr K], and [X] were present during this visit. My observations of the visit included:
…
i.Towards the end of the visit, when my colleague [Mr L] was speaking with [Mr K], [X] ran underneath [Ms Ghalayini’s] chair. I overheard an exchange to the following effect between [Ms Ghalayini] and [X]:
[Ms Ghalayini]: “Do you love mummy?
[X]: “no”
[Ms Ghalayini] then looked around to the group, gestured to [X] to repeat what he said, and said in a loud voice, words to the effect, “he says this all the time”. [Ms Ghalayini] then said words to the effect: “all the time if [X] was asked ‘do you love mummy’ he would say ‘no’, and if he were asked ‘do you love daddy’ he would say “yes”. I observed [X] to be smiling during this exchange with [Ms Ghalayini], with his demeanour during the exchange being happy and playful, as if he was playing a game with [Ms Ghalayini]. I then observed [X] to return to playing with [Mr N], as he had been doing prior to the exchange.
The paternal grandmother was asked by the Court Child Expert why she had made a point of raising that the child did not love his mother. The report writer says the paternal grandmother indicated she did not know why she had done that in circumstances where the child did love his mother. She denied that she would encourage the child to feel poorly towards his mother but this is sadly inconsistent with what has been observed and indicative either that she is not being truthful with the report writer or in the alternative that she fails to understand the effect of her conduct. On either view it is not supportive of the child’s needs.
I am concerned that the paternal grandmother has chosen to use her affidavit in these proceedings as an opportunity to say negative things about the child’s mother. Counsel for the paternal family questioned the relevance of some of the material, for example that which dealt with alleged sale of counterfeit fashion items or excessive alcohol use, in a case where the mother's death means she is not seeking orders. Counsel for the paternal family made a submission to the effect that some of the allegations about the mother's conduct may be relevant to the father's defence in the criminal proceedings in due course. Even if I accept that this is the case, their relevance to this interim application remains opaque to me.
I am not a position to make findings of fact about the truth or otherwise of what the paternal family say about the mother but I do know, on the basis of the psychological evidence, that the child will require support from people who are able to provide him with a healthy view of the carer he has lost and support him in his grief. The DCJ observed that the paternal family have not demonstrated insight into how their words and actions in relation to the mother will psychologically damage the child. They deny that the child’s world is any different than it has ever been and that he will have no understanding of what has occurred. They are of the belief that the child was mostly cared for by his paternal grandmother so there is no impact on him of losing his mother. They have, as I previously indicated, declined psychological or other services for the child believing he does not need them.
Ultimately I have concluded that it is important that he be protected from the risk of psychological harm from being exposed to abuse of family violence and that this must take precedence. I am comforted in the fact that it is plain that he has a good and close relationship (albeit not of the same nature as with the paternal family) with members of the maternal family who will be capable of attending to his care.
The Court Child Expert emphasised the child’s need for safety, security and stability given his recent experiences. The evidence suggests a capacity by both families to provide nurturing care. The issues of safety is therefore dispositive of the outcome in this case.
The maternal aunt has experience with helping her own children through the loss of a parent and has the language to discuss the child’s loss with him in what appears to be an appropriate manner.
That maternal grandfather's interactions with the DCJ suggest he is attuned to the potential need for therapeutic supports and is committed to obtaining them with the assistance, in the first instance of the consular assistance he has received from the Country B Consulate in Australia. Counsel for the paternal grandmother appropriately conceded that little could be said against the proposition that if the paternal family were to exercise parental responsibility to obtain citizenship and this had benefits for the child it was difficult to be heard against such a course.
I reiterate that these are interim orders and it may be that a different outcome could be the case at final hearing but these are the orders that best meet the needs of the child until a final hearing can be scheduled. The status of Country B as a country who is a party to the Hague Convention on the Civil Aspects of International Child Abduction and the undertakings proffered by the maternal grandparents together with a hearing as quickly as is practicable will function to mitigate against some of the concerns that arise when the court is contemplating changing a child's country of residence on an interim basis.
Having determined that the child should live with the maternal grandparents it follows, on the basis of the findings and discussions above, that the parental responsibility order which is in his best interests is one where the parental responsibility is allocated to the maternal grandparents on an interim basis. That parental responsibility will also permit them to obtain travel documentation as set out in their affidavit material.
The matter will be listed for case management to allow consideration of an expedited full Family Report and an expedited final hearing.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 23 June 2023
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