Kazmi and Botros

[2014] FamCA 56

FAMILY COURT OF AUSTRALIA

KAZMI & BOTROS [2014] FamCA 56

FAMILY LAW – CHILDREN – Ex parte – Location order and recovery order application in respect of one child – Application granted in respect of recovery order – Names of children placed on airport watch list

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 67Q, 67U, 67V
Family Law Rules 2004 (Cth) r 5.12

Goode & Goode (2006) FamCA 1346

APPLICANT: Ms Kazmi

RESPONDENT: Mr Botros

FILE NUMBER: SYC 5537 of 2013

DATE DELIVERED: 21 January 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 21 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Oxford Lawyers

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. The children Y born … August 2011 and L born … October 2008 live with the Mother.

2. The Father be restrained from contacting or approaching the Mother and children in any way whatsoever pursuant to section 68B of the Act and that this order is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Act.

IT IS FURTHER ORDERED THAT:

1. Pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child L born … August 2008 and to deliver the said child to the Applicant Mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

2. Until further order the Applicant and the Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children L born … October 2008 (female) and Y born … August 2011 from the Commonwealth of Australia. 

3. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.

4. Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s names on the Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia for a period of two years.

5. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

6. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to these orders.

7. Upon expiration of the period referred to in Order 6 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

8. The matter is adjourned to Monday 17 February 2014 at 9.30 am in the duty list before the Registrar.

IT IS NOTED THAT:

(a)If, after the expiration of the period set out in Order 6 above, any parent seeks that the children’s name(s) remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence that supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

(b)These orders have been made in the absence of the Husband and he is at liberty to make such application to the Court on short notice as he may be advised.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5537 of 2013

Ms Kazmi

Applicant

And

Mr Botros

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These are parenting proceedings commenced by application filed today, 21 January 2014.  The Applicant mother, Ms Kazmi, seeks urgent and interim parenting orders in relation to the children L, born in October 2008, and Y, born in August 2011, and seeks that those orders be made on an ex-parte basis. 

2. On 21 January 2014, the Court delivered these extempore reasons for Judgment. 

Background

1. The parties commenced to reside together in November 1992, separating in September 2010.  There are two children of that relationship under the age of 18 years: Y, born in August 2011, who continues to reside with the Applicant mother, and L, born in October 2008, who resided with the mother post-separation until a date about 3 weeks ago when the child was removed from the mother’s care in circumstances more fully set out in the mother’s affidavit filed 21 January 2014.

2. The mother is aged 40 and the father aged 49. The parties married in Lebanon in November 1992.

3. There are four children of the relationship between the mother and father. The two elder children are B, now 19 years of age, and C, now 18 years of age.

4. In 2000 the mother and father and the two older children of their relationship came to Australia as refugees. The younger children, the subject of these proceedings, were born in Australia.

5. The mother asserts that commencing in 2004 the father became physically violent towards her, and was controlling and dominating of her. He, she says, controlled who the mother could spend time with, where she should go, with whom she should go and the parties’ finances, and every aspect of their life.

6. In 2004 she says the father threatened the wife with a knife and scissors and he continued those threats in the years thereafter.

7. The mother first sought help from the Suburb D Domestic Violence Services in late 2004 and was accommodated at the refuge for a period of about two weeks.

8. In 2007 an Apprehended Domestic Violence Order was made protecting the mother from the father. The incident leading to the Domestic Violence Order was in the presence of the two older children. She says the father smashed a glass into a wall and threatened to cut her throat with a piece of the broken glass. She escaped the premises by jumping the backyard fence to a neighbour’s house and the police were called. Subsequently, the mother remained in a refuge for about two weeks, only returning to the home out of concern for her children.

9. Subsequent to the 2007 incident the father continued to verbally and emotionally abuse the mother. She says that she felt powerless and vulnerable.

10. Following a further incident the mother and the children were accommodated at the women’s refuge at Suburb E, near Newcastle where they remained for about 3 to 4 weeks. The mother and the children returned to the home as a consequence of what she says was community pressure.

11. Subsequently, the third child of the relationship was born in October 2008, and later that year the family travelled to Lebanon for what the father described to her would be a vacation.

12. The family stayed at the father’s sister’s home in Lebanon and the father took possession of the passports for the mother and the children and placed the names of the children on the Airport Watch List in Lebanon. The children were thus prevented from leaving Lebanon and returning to Australia to resume their life here.

13. Whilst in Lebanon the father physically assaulted the mother and the assault was reported to the Lebanese police.

14. The mother asserts that whilst in Lebanon the father married a second wife, with that marriage lasting only about three months.

15. The mother was later able to retrieve her passport from the Australian Embassy in Lebanon where she was advised to leave the country before the father placed her name on the Airport Watch List.

16. The mother returned to Australia and changed her name from … to Ms Kazmi so that she could return to Lebanon and be free to leave should she wish. The mother returned to Lebanon shortly after she changed her name.

17. The father, she says, recommenced his abuse of her, and in December 2010, the mother left the home in Lebanon to live with her parents, who also live in Lebanon. The mother remained at her parents’ home until June 2011. During the period the mother resided at her parents’ home, the youngest child L was living with her and the older children were spending equal time with each of the parents, but during the periods they were to be with the father, they would visit the mother or she would visit them on a daily basis, cooking and cleaning and performing household tasks for the children.

18. The mother returned to Australia in June 2011 in order to obtain new Australian passports for the children. The youngest child Y was born in August 2011, shortly after the mother returned to Australia.

19. Shortly after the mother arrived in Australia she spoke to the child B, who informed her that she had left the home because the father stabbed her in the arm, leaving a horizontal stab wound measuring about two and a half centimetres.

20. On 28 June 2011 the mother received communication from an officer from the Department of Foreign Affairs and Trade in Lebanon advising her that the child C was homeless, not attending school and was physically abused by the father. The email confirms that the child had visited the Australian Embassy in Lebanon on 27 June 2011 seeking assistance for himself and his elder sister B. He informed the Embassy that he had not attended school in two years and that he and his sister had regularly experienced domestic violence when living with the father. He further informed the Embassy that the father was in possession of all three children’s Australian passports and Lebanese identity documents and had raised travel bans against all three children. The child further informed the Embassy that he had been living with the mother until she travelled to Australia on 26 June 2011 and he could not return to his father’s house or his paternal grandparents home, nor could he join his younger sister L at the maternal grandmother’s home as his father frequently visited there. The child informed the Embassy that his sister B remained at the father’s home, was prevented from leaving and was suffering from depression.

21. The Embassy in the email communication informed the mother that it had contacted various welfare organisations to arrange emergency accommodation.

22. In October 2011 the mother received confirmation that passports had been reissued for the two elder children. The mother had been able to facilitate the child C, who at the time was 16 years of age, returning back to Australia.

23. The mother thereupon returned to Lebanon in January 2012 in an endeavour to return the remaining children to Australia.

24. The Lebanese Embassy would not assist the mother in her endeavours to return the child B to Australia without a court order. It was necessary for B to remain until she was 18 years of age to obtain an order facilitating her return to Australia, and she returned to Australia in about June 2012.

25. The father refused to permit the mother to return to Australia with the child L, who remained on the Lebanese Airport Watch List.

26. In late July 2013 the mother received information that the father was coming to Australia. On the father’s arrival in Australia the mother attended at the airport in Sydney and took the child L into her care. Thereafter, the father has had occasional time with L and Y.

27. The mother was able to obtain from the father the child L’s Australian passport on the pretext that she needed it to seek medical attention for the child.

28. On 9 September 2013 the father demanded of the mother that she give the Australian passports for the children L and Y to him so that he could return to Lebanon. The mother refused and the father thereupon threatened her. The mother reported the threat to Suburb F Police.

29. The mother thereupon obtained emergency accommodation in a refuge and she remained at that refuge with L and Y for about six weeks until she was provided with rental accommodation in November 2013.

30. On 19 September 2013 the mother attended at the Family Court in Sydney to seek urgent orders to prevent the father from taking the children overseas. At that time the mother placed the children on the Australian Airport Watch List.

31. The father subsequently found out where the mother and children were residing and attended at the premises.

32. On 19 December 2013 the father attended at the mother’s home and verbally abused her and threatened her. The father told the mother to pack her belongings and leave the home. She refused. She requested the father to leave the premises and he refused. The mother then sought to leave the premises to go to the police station and attempted to take a both Y and L with her.

33. The father refused to allow the mother to take the child L with her.

34. Subsequently the mother and officers of the New South Wales police attended at the mother’s home to find that the home had been locked from the inside. The mother was concerned about the consequences of forcible entry, but returned to the home the following day to find that the father and L were not present.

35. The mother has been unaware as to the whereabouts of the child L and the father since that date. She has made enquiries of family friends and family but has received no assistance. The mother has concerns for the well-being of the child L whilst with the father. All of the child’s belongings remain with the mother.

36. The mother says the father has threatened to “commit a crime” if the mother does not follow his demands and the mother is understandably concerned that his anger will be taken out on the child L, the mother being told by the older children that whilst they were in the father’s care in Lebanon, they were physically assaulted by him.

37. The child L is due to commence school this year.

38. On 25 December 2013 the father attempted to leave the country with the child L and was prevented from so doing by the Australian Federal Police.

Discussion

1. It is clear that urgent orders are necessary, not only in that the mother has been the primary carer of the child, but there are significant and concerning allegations relating to the father, contained in the mother’s affidavit, in particular, the father’s attempt to remove the child from Australia to Lebanon prior the commencement of these proceedings.

2. The interim orders sought by the mother include a location order under section 67N(2) of the Family Law Act 1975 (Cth) (“the Act”) directed to Centrelink, an order that the two subject children live with her and a recovery order under the provision of section 67Q of the Act.

3. The mother also seeks orders that time the Respondent father spends with the child be supervised at a contact centre.  That order need not be addressed today. 

4. Further, the Applicant seeks an order that the usual watch list order be made so as to formalise the current arrangements with the children being placed on the Airport Watch List as a consequence of what appears to have been a previous application filed but not proceeded with.

5. The requirements in relation to an ex-parte interim application are set out in the provisions of the Family Law Rules 2004 (Cth), in particular, Rule 5.12. The Court is satisfied that, as best she can, the Applicant mother has complied with the requirements of Rule 5.12, such as to facilitate the Court dealing with the matter on an ex-parte and urgent basis.

6. The primary urgent application is the recovery application relating to the child L, born in October 2008. The provisions in relation to recovery are set out in section 67U of the Act, which empowers the Court to make such recovery order as the Court sees proper.

7. The determination as to whether to make a recovery order is governed by the provisions of section 67V, which relevantly provides that when deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interest of the child as the paramount consideration. 

8. The best interests of the children, the subject of proceedings before this Court, are set out in the provisions of section 60CC of the Act. That section sets out the primary and additional considerations in respect of which the Court is required to have regard to.

9. The relevant principles in relation to parenting in interim proceedings are well settled in Goode & Goode (2006) FamCA 1346.

10. Section 60B of the Act outlines the objects and principles underlying Part VII of the legislation.

11. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. 

12. Section 60CC outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child.

13. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility.

14. That presumption does not apply where there are reasonable grounds to believe that a parent is engaged in abuse of the child or family violence, or whether the Court considers, in the circumstance, it is not appropriate for the presumption to be applied or the Court is not satisfied that an order for equal shared parental responsibility would not be in the child’s best interest. 

15. In all of the circumstances of this matter, as detailed above, the Court is satisfied it would not be appropriate for the presumption to be applied and accordingly, the orders to be made by the Court fall to be determined by reason of a consideration of the best interest factors set out in section 60CC.

16. Those factors are set out in section 60CC(3): the additional considerations, and section 60CC(2): the primary considerations.

17. The determination of this application can be resolved by a simple reference to the provisions of section 60CC(2) of the Act; that is, the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. Subsection (2A) of that section was inserted by reason of the amendments to the Act in 2012 and the protective concerns in section 60CC(2)(b) are to be given greater weight in the context of best interest considerations.

18. This is a circumstance where the subject child is five years of age, has primarily been in the care of the mother, has been taken from the mother in circumstances more fully set out in her affidavit. 

19. The mother is not aware as to the whereabouts of the child or the father and it is to be inferred that the child would be significantly distressed or concerned as a consequence of separation from the mother, thus exposing the child to psychological harm and, indeed, the prospect of physical harm at the hands of the father if the mother’s concerns are borne out in reality.

20. Therefore, the Court makes the usual order for the issue of a recovery order in relation to the child L, born in October 2008. 

21. The Court also makes the usual order placing the names of the subject children on the Airport Watch List and all necessary ancillary orders to put that Watch List Order into effect. 

22. Otherwise, the proceedings are adjourned for further judicial consideration to 9.30 am on 17 February 2014 before a Registrar.

23. These Orders have been made in the absence of the husband and he is at liberty to make such application to the Court on short notice, as he may be advised.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 January 2014.

Legal Associate:      

Date:    12 February 2014