Lamsaard and Ebrahim

[2015] FamCA 918

FAMILY COURT OF AUSTRALIA

LAMSAARD & EBRAHIM [2015] FamCA 918

FAMILY LAW – CHILDREN – Interim parenting – Where there is one child who is four years old - Where the mother has unilaterally taken the child to live overseas – Where the father seeks that the court make interim orders that the mother return the child to the Commonwealth of Australia – Where the father seeks that the child live with him once returned to Australia – Where the mother alleges that the father has perpetrated domestic violence – Where the court ordered that the child should be restored to Australia – Where the court was not prepared to make orders regarding the child’s long term living arrangements on an interim basis - Where the court held the view that it is in the best interests of the child to determine living arrangements once the child is returned to Australia.

Family Law Act 1975 (Cth) – ss 60B(2), 60CC

Campbell & Spalding [1998] FamCA 66
Goode and Goode (2006) FLC 93-286
Morgan & Miles (2007) FLC 93-343

APPLICANT: Mr Lamsaard

RESPONDENT: Ms Ebrahim

FILE NUMBER: PAC 99 of 2015

DATE DELIVERED: 15 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 15 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow

COUNSEL FOR THE RESPONDENT: Mr Shaw

SOLICITOR FOR THE RESPONDENT: Saba El-Hanania Lawyers

Orders

UPON APPLICATION made to the Court AND UPON HEARING Mr Wong of counsel for the applicant father AND Mr Shaw of counsel for the respondent mother «FCA_LD221»IT IS ORDERED:

1. That the mother return the child A born on … 2011 to the Commonwealth of Australia not later than 5:00 pm on 7 July 2015.

2. That these proceedings are otherwise adjourned for mention at 9:30 am on 9 July 2015 before Johnston J if reasonably available.

3. That the Court notes that the envelope disclosing the mother’s address may be released to the father’s legal representatives.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamsaard & Ebrahim 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 SYDNEY

FILE NUMBER: PAC 99 of 2015

Mr Lamsaard

Applicant

And

Ms Ebrahim

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Lamsaard, to whom I shall for convenience, refer as “the father”, for an order that Ms Ebrahim, “the mother”, return the child of the marriage, A, born in 2011, to the Commonwealth of Australia.  In fact, the father’s application was for an order that pending further order, the child, would not only be returned to Australia, but would live with him. In the somewhat complicated circumstances of this case, however, I have decided that the preferable course, from the point of view of the best interests of the child, would be to first require the return of the child.  Then we might work out what the appropriate living arrangements might be.

2. There are some other consequential orders sought, including inclusion of the child’s details on the watch list at airports and other places. 

3. The mother opposes the orders.  She says, as I understand her case at the present time, that she proposes to return from overseas to Australia in September this year to attend a relative’s wedding.  She would then endeavour to have ventilated, the various matters which are relevant to the best interests of the child at that point.  In the circumstances of this case, in my view, that is not a course which would be consistent with the best interests of the child. 

4. The mother was born in 1977 in Australia and the father was born in 1977 in South East Asia.  They married in 2010.  They separated in approximately August or September 2014.  After separation, the child was living with her father regularly and for what I would describe as substantial and significant time.  The father says it was something like six nights a fortnight. The mother says that that only happened on a couple of occasions. But there is no suggestion that the father and child were not spending considerable and regular time with one another. 

5. On Sunday 1 February this year, when the mother collected the child from the father after the child had been living with him, the mother informed him that she was about to finish work and that she would not be working after the following day.  Three days later, on Wednesday 4 February 2015, the father received two letters from the mother by registered post.  The first letter informed him that when he received the letter, she and the child would be living overseas, or would at least be in an overseas country.  The letter went on to inform the father that the mother had accepted a position of employment by her previous employer, that is the one that she said she was no longer employed by, but that this position was in overseas and it was apparently for an undefined time.

6. That same evening, the mother telephoned the father from overseas.  The father was understandably very distressed and he made it clear to the mother that he wanted her to return to Australia with the child. 

7. Since that time, the father and the child have been speaking by Skype.  The father makes a lot of complaints about the effectiveness and the reality of all of that and clearly, that is an unsatisfactory manner in which to conduct his relationship with his child, at least as he is putting it to the Court.  There was a video call in which the child and the father participated on 27 February 2015 and during the call, the father said that the child said that she was missing him, she was missing her friends and she wanted to come home.

8. I am satisfied that the father has been very much involved in raising the child.  He was unemployed for a couple of years and he had the time to attend to childcare. He did so, although the mother makes numerous complaints about that, which can be ventilated and dealt with, perhaps, in due course.  His affidavit provides considerable details of his care of the child and involvement with her. 

9. Before separation the father had informed the mother that he would not be prepared to move overseas.  This was in a context where the mother had indicated to the father that she was desirous of achieving particular employment in her line of employment and that there were opportunities internationally.

10. It seems clear that at one point, prior to the time that the parties separated, the father agreed that the whole family would move to an overseas country. It was suggested by the mother that he might be able to obtain employment there, that she would have her contract and that it would be in their interests and the child’s interests for the family to be able to relocate overseas. It seems for a period, that the father went along with that.  However, that was before the parties separated. I am satisfied that following separation, the father made it very clear to the mother that he no longer supported that course.

11. He made it very clear to her that he did not want her to go overseas.  He made it very clear to her that he put a high premium on his relationship with the child and he did not want her to take the child away from him and his family in Australia. But the mother still accepted the position in the overseas country.  I am in some slight uncertainty about when she actually accepted that. But I think it was probably before separation.  In any event, the reality is that she and the child are now living overseas.  It is clear that their residence there, and particularly that of the child, was undertaken unilaterally by the child’s mother and against the protests of the father. There can be no uncertainty that what she was doing was not supported by the father.

12. The mother now makes numerous complaints against the father.  She said that the father has been violent to the child by shaking the child.  The father denies that.  The mother said the father punched a hole in the wall.  The father denies that, saying the hole in the wall was always there.  The mother said that the father tried to choke her.  The father said that he has never been violent to the mother and he has put on an affidavit by his step-father to confirm that he has never seen any violence on the part of the father.  The mother said that the child sustained a black eye in the father’s care and that the child had told her that she had fallen and hit her eye on a chair, and the father informed the mother that he was seeing a psychologist.

13. All of those matters can be pursued in the appropriate way in due course.  If the mother returns to Australia and brings the child back to Australia we can have an orderly court hearing about all those matters. 

14. The matter which must guide the Court under the legislation is the best interests of the child.  Best interests, or what the Court needs to be satisfied, is set out in the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”) and as learned counsel for the father has put to the Court in his case outline document, it is important to bear in mind the objects and the principles of the legislation.

15. These included ensuring the children have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent, consistent with the best interests of the children, ensuring the children receive adequate and proper parenting to help them achieve their full potential, ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.  And then the principles are set out in s 60B(2) and I do not, for present purposes, need to refer in detail to those But I take them into account.

16. Of course, we have the matters in s 60CC(2) and (3), which guide the Court in its determination of what is in the child’s best interests. The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The second of those is to be given greater weight than the earlier of those considerations. 

17. The first of the additional considerations is any views expressed by the child. The child is a very young child, four years of age, there are not really any properly obtained views of the child and she is so young that one would be concerned about giving them much weight. 

18. The next matter is the nature of the relationship of the child with each of the child’s parents and other persons.  There is no suggestion that the child has other than a close relationship with each of her parents. 

19. The next matter is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues.  I guess there is a failure by one party in respect of such an important issue, where the child is actually going to reside. 

20. The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child, it is not a matter about which I am aware there are difficulties, but that might turn out to be the case. 

21. The likely effect of any change in the child’s circumstances. If the child is ordered to come back to Australia and particularly in view of the father’s evidence about the telephone conversation with the child and the video conversation with the child in February, one would have thought, just looking objectively at the factors, given the child has got a close relationship with the father, that the child would be missing her father.  So one would think there would be a positive effect in the change of the child’s current arrangements, at least in terms of her residence overseas, as against Australia. 

22. The next matter is an important one. It is the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.  Well, it is hard to think of further distance between the overseas country and Australia.

23. It is also, presumably, some distance, in terms of cultural differences, although I am not informed about those matters at this stage. I have indicated that the mother appears to have an Arabic background, although born in Australia. The father was born in South East Asia.

24. The next matter is the capacity of each of the child’s parents and any other person to provide for the needs of the child. Each of the parents would appear to have appropriate capacity.  Although, the mother’s capacity, in my view, must be seen, at least at this stage, to suffer some deficiency, in the sense that she did not pay the father the regard and perhaps, the child due regard, in simply deciding to change the child’s residence against the wishes of the father. 

25. As I have said, the child is a young child. 

26. The other relevant matters include any family violence. That is a matter which appears to be in issue. But it is not a matter about which objectively I could be satisfied, at least for the purposes of this interim proceeding, one way or other. 

27. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. I cannot form a view one way or the other about that matter, given the complexity of this matter. 

28. And any fact or circumstance that the Court thinks is relevant. The circumstances that are relevant are those raised by the reference to the authorities by learned counsel for the father.

29. The first authority which has been helpfully referred to was an unreported decision, I think it must be of the Full Court, in the case of Campbell & Spalding[1998] FamCA 66, 15 May 1998, so the reference is to a passage by Warnick J, with whom Ellis and Lindenmayer JJ agreed, and his Honour, Warnick J said as follows, and this was in the context of a case where one of the parents have unilaterally removed a child from the jurisdiction – his Honour says as follows:

    In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand. 

30. That decision was taken before the amendments to the Act and the decision in Goode & Goode (2006) FLC 93-286. But Boland J said in a case, Morgan & Miles (2007) FLC 93-343, where her Honour referred to the application of Warnick J’s passage to which I have just referred:

    … [I]t [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases. 

31. In my view, a consideration of the relevant matters in Part VII of the Act leads me clearly to the view that the best interests of this child lie in her being restored to Australia, so that this Court can then have a proper, orderly and regular consideration of all those matters which are relevant to her best interests. As I say, the father was also seeking an order that the child live with him. That is not an order that I would be prepared to make at the present time because I think the best interests of this child require, firstly, that her mother return with her. Then we shall have a look at all the relevant matters which would lead to a determination about her appropriate living arrangements.

32. So I propose to put in place the order that is sought at paragraph 5 of the father’s application. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 15 June 2015.

Associate:     

Date:              28 October 2015