Hewlett and Hardy - [2008] FMCAfam 576

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEWLETT & HARDY

[2008] FMCAfam 576

FAMILY LAW – Parents’ desire for children to return to Iran – opposed by Independent Children’s Lawyer – application granted – papers referred to Attorney-General as affidavits inconsistent with recent refugee application.

Applicant:

MR HEWLETT

Respondent:

MS HARDY

File number:

MLC 13859 of 2007

Judgment of:

Burchardt FM

Hearing date:

24 April 2008

Date of last submission:

24 April 2008

Delivered at:

Melbourne

Delivered on:

24 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr A. D. Clements

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms Pandeli

Solicitor for the Respondent:

Maria Barbayannis & Co

Counsel for the Independent Children’s Lawyer:

Ms J. S. Elleray

Solicitor for the Independent Children’s Lawyer:

Goddard Elliott

IT IS ORDERED BY CONSENT:

That paragraphs 5, 6 and 7 of the Orders dated 7 January 2008 be discharged.
That the children of the marriage, [A] born in 1994 and [B] born in 1999, live with the wife.
That the wife be permitted to relocate with the children to live in Iran.
That the children spend time and communicate with the husband at such times as may be agreed between the parties.
That the children’s names be removed from the Airport Watch List.
That the solicitor for the wife shall serve a sealed copy of the Order upon the Australian Federal Police.
That the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s.65DA(2) and s.62B, 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 the Fact Sheet annexed hereto and these particulars are included in these orders.
That the final hearing date of 21 July 2008 be vacated.
That all extant applications be dismissed and removed from the list of cases awaiting final determination.

AND THE COURT NOTES:

That the Independent Children’s Lawyer does not consent to Order (1).

IT IS NOTED that publication of this judgment under the pseudonym Hewlett & Hardy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 13859 of 2007

MR HEWLETT

Applicant

And

MS HARDY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This in some ways is an unsatisfactory matter. It seems that the family with which we are concerned, the father, mother and two children, arrived in Australia on 26 July 2007 on refugee visas which permit them to remain in Australia indefinitely.
In January the father filed an application for a Watch List order and asserted amongst other things that it was in the best interests of the children to remain living in Australia, he proffered some assertions that the situation that caused the parties to flee in Iran was a relationship embarked upon by his sister, false accusations made as a result of that by the wife and subsequent family disputation.
That is in fact not an entirely accurately summation of the paragraphs but this is an extempore decision given at the end of a long day. The wife and mother filed a responding affidavit. That speaks for itself, but she denied the assertions made by the father as to the reasons for leaving and said that they had left Iran because of difficulties arising out of their Bahai religion. She said that the government had changed its policy and putting the matter in short they could return safely to Iran.
Despite the initial opposition between the parties, today the Court is confronted with signed minutes of consent orders which relevantly have the effect that the mother be permitted to return to Iran with the two children.
There is a notation signed by the parties to the effect that the husband consents to the orders on the basis that he does not concede it is in the children's best interests to return to live in Iran. I am now told by his counsel that he is happy for those orders to be made without the notation.
Counsel for the Independent Children’s Lawyer has raised four matters in opposition to the application. She says that the Independent Children’s Lawyer needs time to investigate various matters.
First, it is put that both children have told the Independent Children’s Lawyer that they wish to return to Iran and that the elder child has inappropriately, it seems to me, telephoned the Independent Children’s Lawyer's office repeatedly, this being a matter that the Independent Children’s Lawyer would wish to investigate further, that is to say the attitude of the children.
Second, inquiries made by the Independent Children’s Lawyer at the school the children attend suggest that they are settling in well and are happy and that the younger one is going well academically although the older one less so. The teachers at the school have apparently informed the Independent Children’s Lawyer that they are of the view that the children are being influenced by the mother in respect of a possible return to Iran.
Third, the Independent Children’s Lawyer does not accept that it is necessarily the case that the position in respect of the Bahai religion in Iran is improving and wishes to press inquiries.
Fourth, the Independent Children’s Lawyer notes that the place where the mother now wishes to go and live is the place identified as being the one from which the family originally fled.
It appears that the parties by consent effectively vacated an appointment with the family report writer and we therefore do not have any benefit of such a report. The mother says she will live with her parents and that the home of the parents is satisfactory for her needs and those of her children. Ms Pandeli on behalf of the mother submitted, in my view correctly, that one has to assume that both parents do indeed have the children's best interests at heart. There is nothing to suggest the contrary. The father, as I said, supports the application. There appears to me to be some equivocation as to the precise state of the marital relationship.
In the ultimate, it seems to me that there is no disputing that the mother is desperately unhappy in Australia. She says so and is acting consistently with such assertions. Such unhappiness is plainly impacting upon the children, whether wittingly or otherwise. As I say whether the mother knows this or not they are, to at least an extent, disturbed.
It is very concerning to me to note that by letter of 17 April 2008 albeit in response to an earlier letter from the Independent Children’s Lawyer which asked the question that the position on instructions taken by the mother's solicitor is that:
We are instructed that there is a prospect of the family returning to Australia in the event that they are disappointed or find the conditions in Iran are worse than Australia.
That matter concerns me, because it indicates that there may be ongoing disruption to the children's lives. It also speaks, in my view, volumes about the candour and sincerity of the assertions that underpin the refugee application.
In the ultimate though, the parents are of mature age; they are adults, they are the parents, there is no suggestion they do not love their children. I find that it is more probable than otherwise that the children are not being taken back to Iran in circumstances where the parents, at least, think there is any objective danger to the children or to themselves, particularly to the mother who is the one who is certainly going to return.
While like the Independent Children’s Lawyer, I am concerned by the matters that have been raised I do not think it is in the children's best interests to interrupt the combined wishes of the parents. It seems to me they should be allowed to go.
The disbursement of public funds on further inquiries by the Independent Children’s Lawyer should cease and I should make the orders proposed by consent save that the notation will be removed, although it will take some time because I am going on leave. I put the parties on notice that I am going to refer the papers to the Attorney-General including the correspondence that I have been handed together with transcript of today's proceeding subject to it being in accordance with protocol and I would interpolate that I have not had to do this in my judicial career thus far.
I propose to draw the Attorney-General's attention to affidavit material and the correspondence and to draw the Attorney-General’s attention to the tension that seems to me to exist between what the parties are saying now and what they said when they were trying to get refugee visas and I would also draw to the Attorney-General’s attention in the event that the mother endeavours to return to Australia on the footing that she says she is a refugee in the near future. Those are matters for the Attorney-General, self-evidently, but that is what I am going to do unless I am dissuaded by the registry that it is not the proper course of action and I do not think it will. So there will be orders in those terms.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 24 April 2008