Madley & Madley and Anor - [2011] FMCAfam 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MADLEY & MADLEY and ANOR

[2011] FMCAfam 1007

FAMILY LAW – Ex parte application made by child (16 years) for orders placing herself on the Airport Watchlist to prevent an arranged marriage taking place in a non Hague Convention country – arranged marriage planned by parents.

Family Law Act 1975, ss.68B, 68C, 60CC, 60B, 65DAA
Marriage Act 1961, ss.12, 23
Federal Magistrates Court Rules 2001
International Convention on the Rights of the Child, Article 12

Mabo v Queensland [1992] HCA 23
Minister of Ethnic Affairs v Teoh [1995] HCA 20
Dylan & Dylan [2007] FamCA 842

Applicant:

MS MADLEY

First Respondent:

MRS MADLEY

Second Respondent:

MR MADLEY

File Number:

PAC 1429 of 2011

Judgment of:

Harman FM

Hearing date:

1 April 2011

Date of Last Submission:

1 April 2011

Delivered at:

Parramatta

Delivered on:

1 April 2011

REPRESENTATION

Solicitors for the Applicant:

Legal Aid New South Wales

ORDERS

Pending further order, each of Mrs Madley, being the mother of Ms Madley, born [in] 1995, and Mr Madley, being Ms Madley's father, shall be and are hereby restrained from removing, attempting or causing Ms Madley's removal from the Commonwealth of Australia.
Within 72 hours (ie by 4.30 pm on Monday, 4 April 2011) any passport for the young person, Ms Madley, born [in] 1995, is to be surrendered by Ms Madley's parents, or such of them as possess it, to the Registrar of this court, and thereafter held by the Registrar pending further order.
In the event that Ms Madley's passport is not surrendered to the Registry of this Court by 4.30pm on 4 April 2011, then as soon as practicable following the commencement of business 5 April 2011, a request is to be forwarded to the minister seized with the responsibility for the issue of passports requesting the immediate cancellation of any passport for the child, Ms Madley, born [in] 1995.
Until further order the applicant and the respondent, by themselves, their servants or their agents or of Ms Madley’s own volition are restrained from removing or attempting to remove Ms Madley born [in] 1995 (female) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates 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 young person from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
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.
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.
These proceedings are adjourned for further mention or directions at 9.30 am on 11 April 2011. I will do that on the basis that the young person is 16 years of age and has provided instructions as the applicant in these proceedings to avoid her removal to Lebanon for an arranged marriage.
Direct that each of the respondents be personally served with the initiating application and affidavit and a copy of these orders as soon as possible.
Pursuant to s.68B of the Family Law Act 1975, and pending further order, that each of the respondents, being each of Ms Madley's parents, shall be and are hereby restrained from:
(a)Assaulting, molesting, harassing, threatening or otherwise intimidating Ms Madley.
(b)Questioning Ms Madley with respect to these proceedings, or requesting, permitting or allowing any other person to do so.
(c)Causing Ms Madley's removal from any school which she presently attends and at which she is enrolled.
I note that the above order, pursuant to section 68B, is an order made for the young person's personal protection and welfare, and as such, an automatic power of arrest without warrant applies pursuant to s.68C in the event that any police officer believes, on reasonable grounds, that the injunction has been breached.

IT IS NOTED that publication of this judgment under the pseudonym Madley & Madley and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 1429 of 2011

MS MADLEY

Applicant

And

MRS MADLEY

First Respondent

MR MADLEY

Second Respondent

REASONS FOR JUDGMENT

These are proceedings involving an ex parte application for orders by a young person, Ms Madley, born [in] 1995. Ms Madley is a 16 year old child.
Ms Madley has standing under the legislation to bring an application on her own behalf, and she is competent to do so, both at law and under the provisions of the legislation particularly s.65C which provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(c) a grandparent of the child; or
(d) any other person concerned with the care, welfare or development of the child
The application that is brought by her, names, as the respondents to the proceedings, her mother and father being her parents.
The application is one that is becoming increasingly common both before this Court and the Family Court.
The application arises from circumstances wherein this young person’s parents have made arrangements for her to marry a person whom, on her evidence, she has met on one occasion. The wedding has been planned to take place in a little under two weeks time and would involve this child flying from Australia to a non Hague convention middle eastern country for the purpose of that marriage occurring.
The marriage, if it were to occur in Australia under the provisions of the Marriage Act 1961, would require both a Court order and parental consent.
Accordingly, in the event that it were suggested that the marriage should occur in this country the Court's jurisdiction would be invoked. That adds, in my mind, further weight to the provisions of s.65C that allow and permit a child to bring an application with respect to their own care, welfare and development, and particularly, as in the circumstances of this case, for a marriage to proceed in Australia, an application would be required under s.12 of the Marriage Act 1961.
The evidence of this young person, obtained on short notice, makes very clear that her elder sister, who is of maturity and 23 years of age, is engaged to a relative of the person to whom this young person's marriage is now proposed.
The young person's evidence makes very clear that she has expressed to her parents that she does not want to go to Lebanon and does not want to marry the person proposed, being a young man, [Z]. She has indicated also in her evidence that she is fearful for her personal safety, that she has concerns as to what will occur in relation to her mother's reaction once she becomes aware of these proceedings.
On that basis, I am satisfied that the requisite tests, as required by the Family Law Act 1975 and Federal Magistrates Court Rules 2001 as to an application proceeding on an ex parte basis, are met, and that the orders and relief that will be granted at this point in time are with the consent of the child.
This young person, whilst referred to and included within the definition of a child under the Family Law Act, is indeed a young woman whose voice can and should be heard. That is clear from the provisions not only of s.60CC(3)(a), but also from international law, including the Article 12 of the International Convention on the Rights of the Child being:
Article 12 states
“Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
Other international rights legislation would also make clear that marriage, whilst considered a fundamental human right, is not something that should be entered into other than with the consent of the parties. That is again reflected and followed domestically in s.23 of the Marriage Act 1961 which sets out the bases upon which a marriage is void including, as regards consent:
“(d) the consent of either of the parties was not a real consent because:
(i) it was obtained by duress or fraud;
(ii) that party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
(iii) that party was mentally incapable of understanding the nature and effect of the marriage ceremony”
Clearly this young woman does not consent and the marriage, should it proceed, would be void.
In all of those circumstances, I am satisfied that the Court can and should proceed with the matter today on an ex parte basis, particularly as the consequence of making the proceedings known without some relief being granted in the form of an airport watch list order, may be potentially disastrous and certainly frustrate the intent of the application.
If the application was served today, being a Friday, and a course of action was determined, and this child, as it were, spirited out of the country over the weekend, there would be nothing that could then be done to protect and preserve this young person's rights and position as she has clearly expressed it.
I am also cognisant of the strength of conviction and opposition to the proposed wedding shown by this young woman who might be suggested to have betrayed or, at least, bucked the authority of her parents in circumstances that would create some real stress for all concerned. What has occurred is, in fact, an act of great bravery by this young woman in taking the steps this young person has taken in seeking assistance through the Legal Aid Commission.
I commend Ms G and the New South Wales Legal Aid Commission for their prompt action and their efforts in accordance not only with their charter but with the spirit of the legislation to protect this young person's rights. It is commendable and worthy of praise and recognition.
The young person does not wish to proceed with the marriage. The marriage is to a person who is, to all intents and purposes, a stranger to this young person, she having met him only once. That is not to judge, in any fashion, the cultural basis upon which it is sought for the marriage to proceed. However, this child, being an Australian citizen as well as being raised in, and no doubt continuing to be part of, a Lebanese Islamic culture, is in some real conflict in the circumstances in which she finds herself. That is a conflict that should, at least in the short‑term, be the subject of this court's assistance and intervention through injunctive relief and placement of the child upon the airport watch list.
As a parenting application, the court is required to commence, as with all parenting applications, with a consideration of the objects and principles set out in s.60B of the Act. To some extent, the application that is brought by this young person is in conflict with aspects of those objects and principles in that they require that children should be the subject of their parent’s fulfilling duties towards them, making decisions with respect to them and fulfilling and sharing duties and responsibilities to enable the child to reach their full potential.
It may well be the case in this matter and with the evidence that is available at present from this young person, that it is the desire and intention of one, if not both, of these parents for the marriage to proceed. This young person's evidence makes clear that her father, whilst aware of the marriage, is not aware of the specific date or timeframe proposed, and generally opposes the marriage proceeding. However, the focus of the objects and principles, whilst speaking in terms of rights and responsibilities does not, importantly speak in terms of rights of parents but rather the rights of children.
It is not the right of any parent to cause their child to be married against their will, whether in accordance with Australian law or otherwise. This child has a voice, which the international convention requires to be heard, and whilst not all aspects of the convention have yet been embodied in domestic law, it has been made clear by cases such as Mabov Queensland [1992] HCA 23 and Minister of Ethnic Affairs vTeho [1995] HCA 20, that those international obligations must inform and provide the context and spirit for the operation and interpretation of the legislation.
A consideration of equal shared parental responsibility is not germane in this case and no order is sought with respect to it. In any event, the presumption of equal shared parental responsibility applies between parents and not with respect to a specific issues application of this nature.
Reasonable practicality as addressed by s.65DAA(5) is, again, of no great significance in relation to this application other than the impact of the arrangement proposed, whether as a time order or any other parenting order, on the child.
Clearly this young person, at the age of 16, has made clear her own views, and again, I must place all the more weight upon those views, having regard not only to the apparent maturity expressed through her instruction and evidence before the court, but also the conflict and difficulties that she would have had in expressing those clear views, knowing full well that they are contrary to her parent’s expectations of her and her cultural and religious obligations to obey her parents.
The guiding basis of principle by which this child has been raised, makes clear that her actions in approaching the Legal Aid Commission let alone this Court might be perceived as disrespectful of her parents and disobedient of their will. That, in my mind, makes all the stronger the weight that must be attached to her views expressed in those circumstances.
The primary considerations under s.60CC require that I give consideration to the benefit of the child having a meaningful relation with both parents. That is not a particularly germane consideration in relation to this application, although the meaningful relationship that this young person presently has with each of her parents may well be impacted, positively or more likely negatively, by the application.
More importantly, however, the court is required to consider the need to protect the child from physical or psychological harm in circumstances whereby this young woman does not wish to proceed with a wedding or be married and, accordingly, is being forced to do so - a principle that is contrary to all our legal processes hold dear and which would indeed, under Australian law, render the marriage void, as it is absent genuine consent.
I am satisfied that there is a psychological risk to this child if I were not to make orders that would, in a practical sense, preclude the union occurring and that requires orders that ensure that this child does not leave the jurisdiction pending a further, urgent return date to allow service of the application.
The additional considerations both inform the primary considerations and stand alone such that they might, depending on the facts and circumstances of any given case, have more importance and significance than the primary considerations (as remarked by Carmody J in Dylan & Dylan [2007] FamCA 842). I find that this is one such case.
The views of this young woman, at 16, being that she does not wish to be married to a person whom she has met once, has no affection for, and no relationship with, must, in my mind, be the overriding consideration in determining this application today.
The balance of additional considerations do not have any great significance, other than, again, the likely effect of a change in this child's circumstances. If she is taken from Australia to Lebanon by her parents, she will return married. That is not something she wishes or desires or in any way gives her approval to.
Whilst it might be suggested that there is some degree of cultural clash between an imposition upon and indeed an interference with this family unit and the familial relationship especially between this child and her mother, I make clear that the arrangements proposed should not be judged or criticised from a western perspective, but must be viewed through the eyes of those who live and appreciate that culture. I am satisfied that this young person has a life that straddles both cultures, and that she clearly embraces and understands her independence under her Australian citizenship and lifestyle sufficiently to have taken the steps that she has in seeking legal advice and assistance to protect her own position and to protect her from an arranged marriage she does not wish to participate in.
For all of those reasons, I am satisfied the orders should be made substantially in accordance with the application brought.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 19 September 2011