Khorsandi and Rashidi

[2014] FamCA 474

FAMILY COURT OF AUSTRALIA

KHORSANDI & RASHIDI [2014] FamCA 474

FAMILY LAW – CHILDREN – Urgent application – Application for matter to be dealt with on an ex parte basis – No attempt to serve father – Allegations of family violence – Application for recovery order of children into the mother’s care – Application for matter to be heard on short notice granted – Application dismissed for matter to be dealt with on ex parte basis – Orders made for mother to attempt to serve father

APPLICANT: Ms Khorsandi

RESPONDENT: Mr Rashidi

FILE NUMBER: PAC 3065 of 2014

DATE DELIVERED: 1 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 1 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Oxford Lawyers

THE RESPONDENT: No appearance

Orders

1. Leave is granted for the matter to be dealt with on an urgent basis and the matter is adjourned to Monday 7 July 2014 at 9.30 am.

2. The application for leave for the matter to be dealt with on an ex parte basis today is dismissed, except in relation to order 4, but it is noted that the application may be renewed on the adjourned date.

3. The Respondent father is to be served by close of business on 5 July 2014 and in the event that the Respondent father has not been served, an affidavit in relation to attempts of service is to be filed by the mother by the adjourned date.

4. On an ex-parte basis, Orders made in accordance with order 4 sought by the Applicant mother, with the exception of the words “and children”, which are deleted:

   4.The Father be restrained from contacting or approaching the Mother in any way whatsoever pursuant to section 68B of the Act and that 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.

IN CHAMBERS IT IS ORDERED THAT

1. An interpreter be arranged for the mother on the adjourned date.

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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3065 of 2014

Ms Khorsandi

Applicant

And

Mr Rashidi

Respondent

REASONS FOR JUDGMENT

1. The first thing that the mother is asking for is leave, which is the Court’s permission for this application to be heard today, which is urgently and ex parte, that is, without the other person being here, the husband. Ordinarily applications are not heard until the other party knows about them and has an opportunity to respond and they are also heard in the presence of the other party, unless they know about it and choose not to be here.

2. So before I even make any decisions about what I do with this application, I firstly have to decide whether it is to be dealt with urgently and without the other party being here.

3. Now the main reasons that your lawyer says that it should be dealt with urgently and in the absence of the other party is because you, the mother, have been the carer for the children for their entire lives, you have grave fears or real concerns that the father is being violent to the children currently, and you say you are certain that if the Court does not make an order of the kind that you are asking for, then the father will not return the children to you because he has said in the past that that is what he will do.

4. You are also seeking an order restraining the father from approaching or harming or contacting you in any way because you are concerned that when the father finds out about these proceedings, he will become more aggressive and violent towards yourself and the children. Particularly because you say that there is shame associated, from a cultural point of view, because this sort of application would be unheard of in Country A, where you come from.

5. And you say that you have delayed six weeks in filing this application because legal aid was only granted on 17 June 2014.

6. As far as those matters are concerned, I accept that you had been the primary carer for the children until you left Melbourne three months ago. I also accept that you have concerns that the father is being violent towards the children. However, I see that on 8 March 2014 you sought some support from the Women’s Domestic Violence Crisis Service and it says in a letter from that service attached to your affidavit that you and your children were supported with safe accommodation and referrals to other services. There is no suggestion in your affidavit that you went to police or the Department of Family and Community Services, or its equivalent in Victoria, in relation to concerns that you had about the children being subjected to physical violence. It is also not clear why you did not avail yourself of the service that was being provided by the Women’s Domestic Violence Crisis Service in relation to remaining at the refuge which you were referred to.

7. For whatever reason, which is not explained in the affidavit, particularly where you had concerns about your children, you left Victoria leaving your children in the care of your husband.

8. I also see that although you say that you delayed for six weeks because you were waiting for a grant of legal aid, that that grant of legal aid was in fact received a couple of weeks ago on 17 June 2014, and there is no explanation why between 17 June 2014 and now if the matter was so urgent why it was not brought before a Court then.

9. As far as your concern about your children’s safety and wellbeing is concerned, I note that in the Notice of Child Abuse, Family Violence and Risk of Family Violence it says that in the past the father has slapped, kicked and beaten the children if they made too much noise and disobeyed him and behaved naughtily and yet you left them in his care.

10. It is true that you did speak to police and it appears that they did not get back to you in relation to an assault upon yourself but there is no evidence that you have at any time raised concerns about the children’s safety with any other agency and, as I say, you left Victoria leaving the children in your husband’s care.

11. It also appears from your affidavit that you have made attempts to see the children at their school and there are concerns about the children being subjected to violence and then again there is no suggestion that you have raised that with anyone.

12. The recovery order, which is the order which you say you are certain that you require, is the most extreme order that is available to a Court to be able to be made. You are not seeking, for example, an order that the children live with you and be returned to you by a certain date and that if that does not happen that you then seek a recovery order, and you say that on the basis that you are certain that your husband or the father will not return the children. If the father is, and it appears that he is, an asylum seeker waiting for his application for asylum to be determined to remain in Australia, I would have thought that a suggestion that he would disobey Court orders when he is seeking residence in a country at the same time is a difficult one to maintain. One would expect that the likely behaviour of someone in those circumstances would be to comply with orders of the Court. I think that there are, on these available facts, other orders that can be made after the father has been served with the application and that is a matter that I will take into account.

13. In terms of concerns that the proceedings will prompt the father to become more aggressive and violent towards yourself I note that the father is in Melbourne, Victoria and that you are in New South Wales. You have previously sought the assistance of a domestic violence service. You have given no other details about your circumstances in Sydney. Arrangements can be made at Court itself if you have concerns about your protection to be kept safe, and again, as far as the concerns about the father becoming more violent towards the children, once again I note that you did leave the children with the father in Victoria.

14. This is a serious matter and you raise serious issues of concern about your children but in my view the orders that you are seeking today are not of such a degree of urgency considering all of the history of the matter, including yourself leaving Melbourne a couple of months ago, making a couple of trips to Melbourne, applying for legal aid and having it for a couple of weeks. In my view it is not so urgent that it needs to be dealt with today, but I will give it a much earlier date that it would ordinarily get in the scheme of things. I can give it a date as early as next week on 7 July 2014.

15. As far as serving the father with the application, it is certainly not expected that you do that sort of thing yourself. Service will need to be arranged so at least he is notified of the application. The father is required to be served prior to the adjourned date.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 July 2014.

Legal Associate:       

Date:    2 July 2014