Khorsandi and Rashidi

[2017] FamCA 534

FAMILY COURT OF AUSTRALIA

KHORSANDI & RASHIDI [2017] FamCA 534

FAMILY LAW – CHILDREN – Best Interests – Undefended final hearing – Where the father has returned to Iraq – Where the children appear to have had a meaningful relationship with both parents – Where allegations of family violence do not need to be determined in the circumstances – Orders made – The mother to have sole parental responsibility for the children – The children to live with the mother – The father to spend time with the children as agreed with the mother.    

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Family Law Rules 2004 (Cth) r 16.07

APPLICANT: Ms Khorsandi

RESPONDENT: Mr Rashidi

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 3065 of 2014

DATE DELIVERED: 19 July 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 22 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All prior parenting orders are dismissed.

2. The children B born … 2007 and M born … 2008 (“the children”) live with the mother

3. The mother have sole parental responsibility for the children.

4. The father shall spend such time with the children as agreed by the mother.

5. Orders 6 and 7 of the Orders made on 7 July 2014 for the parents to be restrained from removing the children from Australia and for the children to be placed on the airport watch list be discharged.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3065  of 2014

Ms Khorsandi

Applicant

And

Mr Rashidi

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern two young boys of Country A heritage who arrived in Australia with their parents seeking asylum in 2013.

2. The boys’ parents separated in February 2014. The mother moved to Sydney initially without the children but subsequently they came into her care.

3. Each parent sought orders that the children live with them and spend time with the other parent under various arrangements.

4. Although it not clear when this occurred, the father has returned to Country A.

5. The father did not participate in the final hearing in which the mother sought orders that the children live with her and that she have sole parental responsibility for them. The independent children’s lawyer (“ICL”) appointed to represent the children’s interest in the proceedings supported the orders sought by the mother.

6. At the final undefended hearing I made all of the orders sought by the mother except the removal of a restraint upon the parties removing the children from Australia and a watch list order giving effect to this restraint. I reserved my judgement on this last mentioned order and indicated that I would publish my reasons for the other orders at a future date. These are those reasons and my decision with respect to the watch list order.

Background

1. The mother who is 34 and the father who is 29 are from Country A in the Middle East. They married in that country in 2006. The mother had been previously married and had a daughter who is now about 12 years of age. The mother contends that after her marriage the father did not allow her to contact that older child who lived with her father.

2. The mother claims that she was the victim of family violence perpetrated by the father throughout the entirety of the marriage. She alleges that the father engaged in serious physical assaults upon her as well as emotional abuse. She says that she complained about the abuse to her father who advised her that she should not get a second divorce as it would result in significant dishonour for herself and her family in the conservative Country A community. Apparently the mother took this advice.

3. The parents had two children who were both born in Country A. The eldest boy was born in 2007 and is almost 10 and the second son was born in 2008 and is now eight.

4. The family arrived in 2013 by boat seeking asylum in Australia. So far as I understand it the refugee status of the mother and children is yet to be determined.

5. After their arrival in Australia the family spent about three months in detention until May 2013. Following their release the family initially lived in Adelaide for a further three months and then moved to Melbourne.

6. The mother claims that the father’s physical abuse of her diminished after the family came to Australia as members of the father’s family and friends advised him about the laws in Australia prohibiting domestic violence. She says however that the father became increasingly emotionally abusive and manipulative after their relocation to Australia though on at least one occasion he also physically assaulted her. The mother sought the assistance of police and a domestic violence service as a result of this incident.

7. The mother also says that the father was violent towards the two boys throughout the marriage and engaged in abusive physical discipline for minor disobedience.

8. In March 2014 the mother left the family home with the support of a domestic violence crisis service. The mother says that the father prevented her taking the children with her and she did not see the children for several weeks.

9. The mother subsequently moved to Sydney and commenced proceedings for parenting orders and a recovery order in relation to the children. The recovery order was issued on 7 July 2014 and executed on the following day when the children were returned to the mother in Sydney.

10. Following an application made by the father on 5 September 2014 I made interim orders that he spend time with the children each alternate weekend. Under these orders the father was to travel to Sydney from Melbourne each alternate weekend and spend time with the children at the home of a friend.

11. On 26 September 2014 the family were interviewed by a family consultant as part of the Child Responsive Program. The subsequently produced memorandum to court containing a Child and Parents Issues Assessment is the only report of an assessment carried out by a family consultant. When interviewed by the family consultant the father was still seeking orders that the children live with him in Melbourne while the mother sought that the children live with her and spend no time with their father though if time between the children and the father were ordered by the court she sought that this occur in Sydney.

12. On 2 March 2015 the proceedings were listed for the first day of the less adversarial trial and on 1 June 2015 a Family Report was ordered.

13. In August 2015 the parties divorced.

The father’s non-attendance

1. In February 2016 the order for a family report was discharged as Child Dispute Services had been unable to contact the father to make arrangements for him to be assessed. It appeared at that stage that the father had returned to Country A.

2. The proceedings were then relisted at the request of the ICL and the matter was fixed for an undefended hearing.

3. When the final proceedings were heard on 22 May 2017 the mother was then self-represented and assisted by an interpreter. She did not file an affidavit concerning any events subsequent to September 2014. The mother gave oral evidence that the father had left Australia on an unspecified date which I understood had occurred about 12 months previously. She stated that the father had said goodbye to the children at school and voluntarily returned to Country A and she had had no contact with him since that date.

4. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

   (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

5. In my view, it is in the best interests of the children that the proceedings be finalised and dealt with in the absence of the father in light of the fact that he returned to Country A ostensibly over 12 months ago and there is no evidence before me to indicate that he will return to Australia.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) 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. 

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. Although the mother gave oral evidence that she did not think that the children would receive a benefit from having some form of relationship with their father there is insufficient evidence for me to find that this is the case.

2. The parties separated in about February 2014 when the mother left the family home. Although she claims that the father prevented her from taking the children with her she does not dispute that they were left in the father’s care and she did not commence proceedings for the children’s return until July 2014 when she had relocated to Sydney.

3. The older child informed the family consultant that he had liked living with his father and the younger child referred to enjoying the time he spent with his father.

4. It can be assumed in these circumstances that the children did have a meaningful relationship with their father prior to his departure from Australia. It can also be assumed that the children would receive a benefit from having a meaningful relationship with their father in the future. It is tragic for them that due to steps taken by their father which have not been explained the only parenting arrangement under consideration is one which will deprive them of the benefit of that relationship.

5. No order was made at the conclusion of the undefended final hearing to the effect that the father not spend time with the children. The mother says that if the children ask about their father and seek contact with him or if she needed to make contact with him she would be able to do so. In these circumstances there is a remote possibility that at some time in the future if the children seek to have some form of relationship with their father that it may be able to be facilitated through their mother.

The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. There is no evidence to suggest that there is any risk that the children will be physically or psychologically harmed in the care of their mother.

2. In circumstances where the father has left Australia and is not participating in these proceedings it is unnecessary to make any findings in relation to the mother’s allegations that the children were abused by him or exposed to family violence perpetrated by him.

3. I note however that when interviewed by the family consultant neither of the children said that they felt scared or sad at either of their parents’ homes. The older boy denied that either parent smacked him or yelled at him and did not remember seeing either of his parents hitting or yelling at each other.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

1. At the time the children were interviewed by the family consultant there was no suggestion that the father may leave Australia without arrangements in place for him to maintain his relationship with the children.

2. The older child told the family consultant that he had liked living with his father and if he lived in his with his mother he would want to see his father “all the time”. The younger child referred to having fun with his father when spending time with him.

Nature of the children’s relationship with each parent and other significant persons

1. Despite the mother’s contention that the children have not asked about the father since he has disappeared from their lives and her general allegation about him being an abusive and uninvolved parent I cannot be satisfied as to these matters.

2. On the basis of each child’s presentation to the family consultant, albeit that the assessment was a limited one, and in light of the father having the sole care of the children for six months following separation in my view it can be assumed that the children had a close attachment relationship with their father.

3. However, there is no explanation given by the father for him having left Australia and the mother asserts that he left voluntarily. In these circumstances the nature of the children’s relationship with their father cannot be a weighty factor.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

1. The father played a significant role in the children’s lives prior to separation and continued to make important decisions for them for six months following separation such as enrolling them in a new school after they had finished language school. He was also diligent in seeking to spend time with them after the mother had relocated even when that involved considerable inconvenience and cost for him in travelling to Sydney from Melbourne each alternate weekend.

2. Despite the foregoing matters which favour the father his voluntary departure from Australia without any arrangements for even communicating with the children in the future is a very weighty consideration in these proceedings.

3. It can be assumed that the mother has financially supported the children since they have been in her care since July 2014 and there is no prospect of financial support from the father in the future.

Likely effect of change in the children’s circumstances

1. It is not clear when the father left Australia permanently, though it appears that this occurred at least 12 months ago. In this sense there is no change in the children’s circumstances that will be brought about as a result of these orders as the children have lived with their mother and spent no time with their father since then.

2. The most significant change for these children occurred when they began living with their mother in July 2014 and spending only limited time with their father. It appeared that when the family consultant spoke to the children in September 2014 they were missing regular contact with their father. It can be inferred in my view that their father’s complete absence from their life must be causing them some grief despite the mother’s evidence that they never ask about their father.

3. It is difficult to assess the long-term impact upon the emotional well-being and psychological functioning of these children as they develop without sharing any relationship with their father though it can be assumed that there will be some detrimental impact upon them as a result of these circumstances.

Capacity of each parent and any other person to provide for the children’s needs

1. There is no suggestion that the mother is not capable of providing for the children’s needs and she has done so as their primary carer for the last three years and as their sole carer for approximately 12 months.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

1. The children are of Country A heritage. They will continue to enjoy the culture and traditions of this heritage through their mother. The mother also seeks to promote the children’s background by taking them to visit her mother and sister. For this reason she seeks to have the airport watch list order and restraint upon removing the children from Australia lifted.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. Although it appears that the father had a caring and loving attitude towards his children and there were no questions about his lack of responsibility as a parent when the relationship was intact and for some months after the parties separated, his voluntary departure from Australia effectively amounts to an abandonment of his children and his responsibilities as a parent.

Family violence

1. The mother makes very serious allegations that the father was violent towards her throughout the marriage to which the children were exposed. In circumstances where the alleged perpetrator is no longer seeking to play any role in the children’s lives, this is a matter that does not require determination.

2. There is no evidence to suggest that the children are exposed to family violence in the care of the mother.

Conclusion

1. Although when the proceedings commenced both parents were seeking orders that the children live with them, the final hearing did not involve a consideration of competing parenting applications.

2. The children appear to have had a close and established relationship with their father and would in my view benefit from it continuing in a meaningful way. However the father can be taken to have accepted that the children will not benefit from maintaining his relationship with him by voluntarily leaving Australia without explanation and effectively abandoning the children to the sole care of their mother. In these circumstances it is undoubtedly in the best interests of the children that the orders are made as sought by the mother.

3. In accordance with the mother’s proposal I also discharge the earlier orders restraining the parents from removing the children from Australia and the associated order that their names be maintained on the airport watch list. The original purpose for this order having been made has long since passed and the mother as the person who holds sole parental responsibility ought to be in a position to take the children overseas if she so desires especially as there are significant connections to the children’s culture and heritage in Country A.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 July 2017.

Legal Associate: 

Date:  19 July 2017