Khorsandi and Rashidi (No 2)

[2014] FamCA 778

FAMILY COURT OF AUSTRALIA

KHORSANDI & RASHIDI (NO. 2) [2014] FamCA 778

FAMILY LAW – CHILDREN – Interim parenting – best interests of child – with whom a child spends time – meaningful relationship with both parents – child’s views – cultural issues – religion of the children – where allegations of family violence – where father lives interstate – whether contact should be supervised – whether risk of harm to children

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Khorsandi

RESPONDENT: Mr Rashidi

FILE NUMBER: PAC 3065 of 2014

DATE DELIVERED: 17 September 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 5 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Jones of Oxford Lawyers

SOLICITOR FOR THE RESPONDENT: Peter Jurd of Peter Jurd Lawyer

Orders

That pending further order:

1. B born … 2007, and M born … 2008 (“the children”) are to spend time with their father, each alternate weekend from Friday afternoon after school until Sunday 4.00 pm, commencing on 19 September 2014.

   Notation

   A.It is noted that the father intends that he and the children will reside with Mr C of D Street, Suburb E, when spending time together.

   B.It is noted that Mr C has agreed not to proselytise to the children his religious faith. The Court was informed by the father’s legal representative of this agreement.

2. For the purposes of order (1) the father will collect the children from their school at the completion of the school day and return the children to a public place nominated by the mother at completion of such time.

3. For the purposes of order (2) the mother is to advise the father through the parties’ respective legal representatives within 24 hours of the delivery of these orders of the name and address of the school in which the children are enrolled, the time of the completion of the school day and the place nominated for collection at the completion of the father’s time.

4. Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children are to be independently represented by a lawyer in these proceedings.

5. The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the children’s interests.

6. The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at …, Parramatta NSW … or DX … Parramatta, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

7. Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he / she considers relevant to the issues before the Court.

8. Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

9. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

10. Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by arrangement with the Court in chambers in appropriate circumstances.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khorsandi & Rashidi (No. 2) 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

Introduction

1. This matter concerns the two sons of Ms Khorsandi (“the mother”) and Mr Rashidi (“the father”), B who is seven and M who is six.  The family are from Country A and arrived in Australia as asylum seekers.

2. Interim Orders were made on 7 July 2014 for the children to reside with the mother.  At the stage that those orders were made the father was not actively participating in the proceedings.

3. The father subsequently filed a Response to the mother’s application and seeks interim orders that he spend time with the children.  This order is opposed by the mother who also says that if the children are to spend any time with the father it should be supervised.

4. The question for me to decide is whether it is in the children’s best interest to spend time with their father.

Background

1. The mother who is now 32 was born in 1982. The father was born in 1986 and is now 28.  Both parents were born and grew up in Country A.

2. The parents met in late 2005 and were married in May 2006.  The mother had been married previously and was divorced.  Her only child of that relationship lives with that child’s father.

3. The parents lived in City F in Country A and the father worked as a tradesman.

4. The parties’ first son, B was born in 2007 and is now seven.  The second son, M was born in 2008 and is now six.

5. The father says that life in Country A had been made difficult by some serious conflict with the wife’s first husband and also because, in his view, the family were impacted by a strict Islamic administration.  The mother disputes both of these matters.  There are many other details concerning the family’s circumstances in Country A which are in dispute and may need to be resolved at the final hearing.  It is not possible to resolve these matters for the purposes of the interim application.  A particular area of dispute is the mother’s allegation that the father was violent, controlling and abusive towards her throughout the marriage including in Country A.

6. The parties left Country A in late November 2012, flying to Malaysia and then Indonesia and then taking a boat to Australia which was intercepted.  The family were taken to Christmas Island where they remained for about three months and then to Port Augusta where they lived for another three months.  The family lived in Adelaide from late May 2013 until mid August 2013 and then travelled to Melbourne arriving there on about 13 August 2013.

7. The family lived at two different addresses in Melbourne including a two-bedroom unit which they occupied from the beginning of September 2013.

8. Soon after arriving in Melbourne the father began attending at a local Christian church and began participating in faith activities associated with the church.

9. The children attended a language school near to their home in Melbourne and made many friends and learned English.  The language school is an intense English language program designed specifically for students newly arrived to Australia.

10. There was an incident between the parties on around 30 October 2013 where the mother says she was “violently pushed against a door” by the father.  The mother sought assistance from the police and a domestic violence crisis centre.

11. After this incident, the parties initially reconciled.

12. The parties began sleeping in separate bedrooms from about 2 February 2014.

13. On 22 February 2014, the mother called police alleging that the father had pushed her onto a door.  The father denies the incident but went to stay with a friend until 4 March 2014.  During this time the father visited the children who were being cared for by the mother.

14. On 3 March 2014, there was an incident in which the eldest child, B was burnt during the preparation of a meal and was taken to hospital for some medical treatment but was not admitted.  The father returned to the home on 4 March 2014 and made a report to the Victorian Child Welfare Department about the cooking incident.

15. The family remained living in the home up until 8 March 2014 when the mother left.  The mother says that the father prevented her taking the children with her, but the father says that she gave the children a choice and they chose to remain with him.  This is a matter of dispute which will require resolution at the final hearing.  The mother made contact again with the Domestic Violence Crisis Service in Melbourne on 8 March 2014 and reported that she had been threatened with physical harm “and experienced physical, verbal and emotional abuse”.  The father and children did not see the mother for several weeks.

16. The father and the children were evicted on about 31 May 2014 and subsequently found a home which they shared with another family from about 20 June 2014.  The father cared for the children in Melbourne until orders were made on 7 July 2014.  The children were to commence at G Primary School near the new home on Monday 14 July 2014 having completed the language school.

17. Although it is not clear when the mother actually left Melbourne she did visit the language school the children were attending on about five occasions after leaving the Melbourne home and saw one of the children at the school on one occasion.  The mother alleges that he told her that the father had been violent towards him and also says that this son reported the father’s violence to a teacher.

18. The mother first brought an application for recovery order and parenting orders on 1 July 2014.

19. On 7 July 2014, orders were made that the children were to live with the mother.  A recovery order was also issued, and the children were placed on the airport watch list.

20. The warrant associated with the Recovery Order was executed on 8 July 2014 and the children were returned to the mother in Sydney.

21. The father has not communicated with or seen the children since they were removed from his care.  His legal representatives have written to the mother with a proposal for contact, but no response has been received.

22. An appointment has been made for the family to participate in the Child Responsive Program on 3 October 2014.  The father seeks to adjourn his application for interim orders contained in his Response to Initiating Application dated 21 July 2014 until after the Child and Parents Issues Assessment has been prepared.  In that application he seeks for the previous orders to be discharged, for the proceedings to be transferred to the Melbourne Registry of the Court, for the children to live with him and spend substantial and significant time with the mother.

23. For the period prior to 3 October, the father seeks orders that he spend time with the children each alternate weekend when he travels to Sydney.  As noted this order is opposed by the mother who also submits that if the father is to spend time with the children when in Sydney it should be supervised.

24. Although the father continues to live in Melbourne he has made arrangements to stay with a retired official of Church H in Suburb E when he visits Sydney.  The father proposes that his time with the children occur at the official’s home.

The contested facts

1. As noted, in addition to the undisputed facts there are a number of facts in contest.  In particular, the mother alleges that the father has been violent and controlling to her throughout the marriage, both in Country A and Australia which is denied by the father.

2. Both parties also allege that the other parent has been violent towards the children on occasions.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Section 60CA 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.

Framework for interim applications

1. In Dieter[2], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. In this case the interim order is to operate for approximately six weeks, until the Child Responsive Program interviews have taken place and the matter is next listed before the Court. If the matter is not resolved the interim orders may continue for many months before the matter can be determined at a final hearing.

   [2] [2011] FamCAFC 82

2. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

3. In this matter, the father is not seeking an order in relation to parental responsibility in the interim.  Orders relating to parental responsibility have not previously been made.

Should the Court make an order in respect of parental responsibility?

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child.

2. In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

3. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s 61DA(2)). When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances (s 61DA(3)).

4. Although there have been allegations of family violence, it is not possible to determine whether that family violence has occurred on an interim basis.

5. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act that it is in the best interests of the children for the parents to have equal shared parental responsibility for them as so many critical facts relating to their best interests are unknown or in dispute.

6. So far as other orders are concerned, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (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. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. In this matter the children have not had any contact with their father for over two months.  If this situation were to continue, as is envisaged under the mother’s proposed orders of no contact, the children will not be receiving the benefit of having a meaningful relationship with their father for the duration of the orders.

4. The mother contends that the Court should dismiss the father’s application as it is the only way to ensure that the children are protected from physical harm from being physically abused by the father.  It is not clear whether she alleges that the children have been harmed by exposure to family violence perpetrated against her.  As noted, the father denies that he has ever been violent towards the children and actually makes some similar complaints about the mother.  The father does not contend that his concerns about the mother’s behaviour towards the children are such that there is an unacceptable risk of harm to them if they are to remain living with her.  The mother does, however, contend that there is an unacceptable risk of harm to the children if they spend any time with their father, particularly if that time is unsupervised.

5. Although this factual dispute is not capable of being resolved at this interim stage, in accordance with the decision of SS & AH[3], the Court may have some regard to this matter in dispute.  In that case, their Honours said at [100]:

   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.

   [3] [2010] FamCAFC 13

6. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

7. I have given consideration to both elements of the risk assessment in relation to the mother’s contention that the children would be at a risk of harm if they spend time with their father. 

8. Firstly, in relation to the likelihood that the father will be violent to the children if he spends unsupervised time with them, the mother relies on her allegations that the father has been violent to them in the past.  In her affidavit of 26 June 2014 she says that when she saw her children on one occasion after she left the house, her younger son told her that the father was beating them.  She also says that a teacher at the language school known as “Ms J” said that the younger son told this teacher that his brother “was being subjected to violence”.  Elsewhere in her affidavit the mother makes broad statements that the father was “consistently violent, intimidating emotionally abusive and controlling to myself and our two children”.  The mother provides no specific instances of violence against the children and simply says “in the past he has slapped, kicked and beat (the children) when they created too much noise, or if they simply disobeyed him …”.

9. In relation to the risk assessment I note that it is beyond dispute that the mother left the children in the care of their father for a number of months and either remained in Melbourne or returned to visit on numerous occasions. Further, the school reports of the children indicate that the children were both doing well at school, both socially and academically.    In these circumstances I am of the view, on the limited information available, that it is improbable that the children have been physically harmed by the father.  I also cannot be satisfied that he poses a risk to them to an extent that their protection requires that they have no contact with him or have supervised contact only.

1. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

2. A number of matters such as the views expressed by the children, the attitude of each of the parents towards the children and the responsibility of parenthood are unable to be determined at this time prior to any assessment by the Family Consultant. 

3. So far as the nature of the relationship between the children and their parents is concerned, I note that at all relevant times each of the parents has had significant involvement in their care and it is likely that each share a close relationship with each parent.  The father gives evidence which is unable to be disputed by the mother, that the children were distressed when removed by police following the execution of the recovery order.

4. Each of the parents on the undisputed evidence has been involved in participating in decision-making, spending time with and communicating with the children.  However, the mother left the father with the children in early March 2014 and did not take any action until late June 2014 to apply for orders in relation to them.  Similarly, the father did not participate in the proceedings at the outset but immediately took action after the making of the recovery order to seek orders to spend time with the children.  The father maintained the children with the assistance from government and charitable institutions from the time the mother left the family in March 2014.

5. The only change in the children’s circumstances if the father’s orders are made is that they will spend time with him on about two weekends prior to participating in the Child Responsive Program.  This will involve separation from the mother for two consecutive nights on each of these occasions.  It is not disputed that the children were distressed when separated from their father and wished to see him.  The separation from their mother would be limited to two nights each alternate weekend. In these circumstances I am of the view that the children will benefit from spending time with their father and the separation from their mother will not have a significant negative impact upon them.

6. There is significant practical difficulty and expense for the father in his proposal for the children to spend time with him as he will travel from Melbourne.

7. The prior care by the parents of the children under difficult circumstances together with the excellent school reports indicate that the parents are each capable of meeting the children’s everyday needs, though there is very little information about meeting their emotional and psychological needs.

8. The children are from Country A having arrived here with their parents who have claimed asylum.  The father has recently converted to Christianity while the mother remains faithful to her Islamic beliefs.  The mother has concerns that the church official with whom the father intends residing when he visits Sydney may attempt to proselytise or convert the children to Christianity. She seeks an undertaking by the official, which has been agreed to, that he will not proselytise or attempt to convert the children should an order be made for time with the father to be spent in his home. However, absent any power to make an undertaking where supervision is not imposed, that will be noted.

9. Some concerns about the attitude towards parenthood arise in relation to the mother leaving the children with their father and his allegations that she did so to pursue another relationship in Sydney.  However, if the mother’s claims in relation to violence towards her are proven together with her claims about having no alternative other than to leave, a different view may be formed.  I am unable on the evidence before me to make any findings in relation to the mother’s claims about violence.  So far as any concerns about changeover are concerned, the father has suggested that these take place in a public place.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, the primary consideration of the benefit to the children of having a meaningful relationship with both of their parents and the nature of the relationship with each of the parents are of particular significance in this matter.  I am satisfied that appropriate orders are able to be made to address the risk of the children being exposed to family violence and violence towards themselves.  I am satisfied that it is in the children’s best interests for the orders sought by the father to be made pending further order.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 September 2014.

Legal Associate: 

Date:  17 September 2014