MILBURN & ALDERSON

[2018] FamCA 1071

FAMILY COURT OF AUSTRALIA

MILBURN & ALDERSON [2018] FamCA 1071

FAMILY LAW – CHILDREN – Interim Parenting – Where the parents are both on temporary visas in Australia – Where the father is a perpetrator of family violence – Where the child’s name be removed from the Airport Watch List – Where it is in the best interests of the child to relocate with the mother to Country C.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 69ZL
Migration Act 1958 (Cth) s 116(1)(e)

Banks & Banks [2015] FamCAFC 36
CDJ v VAJ [1998] HCA 67
Deiter & Deiter [2011] FamCAFC 82
Goode and Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR v GRR [2010] HCA 4

APPLICANT: Ms Milburn

RESPONDENT: Mr Alderson

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

FILE NUMBER: PAC 4007 of 2016

DATE DELIVERED: 13 December 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 20 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder of Counsel

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Sydney Central

COUNSEL FOR THE RESPONDENT:	Ms Snelling of Counsel
SOLICITOR FOR THE RESPONDENT:	El Baba Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Breeze of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders Made On 20 November 2018

1. Leave is granted to the parties to inspect material produced on subpoena by the Department of Immigration and Border Protection (sleeve 15).

2. That pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised and entitled to remove the child X born … 2013 from the Commonwealth of Australia for the purpose of travel in accordance with these orders.

3. That the name of the child X born … 2013 be removed from the Airport Watch List and it is requested that the Australian Federal Police do all such things to facilitate this request

4. The mother, MS MILBURN, and the child, X, born … 2013 be permitted to travel internationally and if necessary be permitted to have Australian documents without first obtaining the consent of the father Mr Alderson.

5. Proceedings are adjourned for further judicial case management to 10.00 am on the 18 February 2019.

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 Milburn & Alderson 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 4007 of 2016

Ms Milburn

Applicant

And

Mr Alderson

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the mother, 34, and father, 38, both parties are Country C nationals and hold temporary visas in Australia.

2. There is one child of the marriage, X who is currently five years old (“the child”).

3. The matter for determination relates to the interim application of the mother seeking a removal of the child’s name from the Airport Watch List following an order placing the child’s name on the Airport Watch List made by a judge in the Federal Circuit Court on 30 September 2016. In circumstances as discussed below, the mother seeks to return to Country C with the child.

The Proceedings

1. Proceedings were commenced by the applicant father on 26 August 2016 in the Federal Circuit Court by the filing of an Initiating Application seeking an interim order that the child of the relationship, the child, born in 2013 be placed on the Airport Watch List and final orders that the child live with the father, that the father have sole parental responsibility for the child and that he spend time with the mother as agreed. On 5 December 2016 he filed an Amended Initiating Application seeking final and interim parenting orders in similar terms and additional interim orders that the child live with the mother and spend time with the father each weekend from Friday to Monday.

2. On 30 September 2016, Judge Newbrun made an order by consent of the parties that the child X, born in 2013 be placed on the Airport Watch List.

3. In her Response, filed 9 December 2016 the Respondent mother sought final orders that she have sole parental responsibility of the child, that he live with her and spend no time with the father and that the child’s name be removed from the Watch List and that she be permitted to travel outside of Australia with the child, without first seeking the consent of the father.

4. On 10 March 2017 an interim hearing was held before Judge Newbrun. On 23 March 2017 interim orders were made that the child live with the mother and spend time with the father at the Suburb B Contact Centre for two hours each alternate week.

5. On 23 January 2018 the parties attended upon a family consultant of this Court for the purposes of the preparation of a Family Report. This report was released on 12 February 2018.

6. On 28 August 2018, Judge Myers of the Federal Circuit Court made orders appointing a Single Expert, Mr D to provide an opinion on the immigration status of both the mother and the father and the likelihood of them obtaining permanent residency in Australia. That report is Exhibit “C”.

7. On 8 November 2018 the mother filed an Amended Response seeking orders in the same terms to that sought in her original Response as well as an order permitting her to relocate with the child to Country C.

8. On 12 November 2018 after two years in the Federal Circuit Court, the matter was transferred to the Family Court of Australia by reason of the mother’s new proposal for international relocation.

9. On 13 November 2018, the mother filed an Application in a Case seeking interim orders that the child’s name be removed from the Airport Watch List and that she be permitted to travel outside of Australia with the mother. She also sought that the matter be listed for an urgent interim hearing.

10. The present interim application was listed on 20 November 2018. At the interim hearing following consideration of the parties’ affidavit evidence, exhibits tendered and submissions on behalf of the mother and the father, interim orders were made to the effect that the child’s name be removed from the Watch List and that the mother be permitted to travel with the child outside of the Commonwealth of Australia. The circumstances of the mother required the Court to determine the matter as a matter of urgency.

11. These are the reasons for such determination.

Short Reasons for judgment

1. In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. The Full Court went  on to say the legislative pathway in an interim case to determine the best interests of the child would involve the following:

   a)identifying the competing proposals of the parties;

   b)identifying the issues in dispute in the interim hearing;

   c)identifying any agreed or uncontested relevant facts;

   d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a Court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.

Evidence

1. The parties married in Country C in 2009, the marriage was an arranged marriage.

2. It is the mother’s case that the parties’ marriage was characterised by coercive and controlling violence. Specifically she alleges that shortly after the parties married the father began verbally abusing her and that following the birth of the child in 2013, the father’s aggression increased and he began making threats to kill her.

3. She further asserts that she was sexually assaulted by him. The mother alleges that from late 2013 to February 2014 the father raped the mother up to three times a week. The mother at this time separated from the father.

4. In March 2015 the mother moved to Australia with the child, she was granted a temporary student visa and was studying at university.

5. The parties recommenced their relationship in June 2015 when the father moved to Australia on a dependents visa in November 2015. The parties began living with the father’s brother in Sydney.

6. Shortly after the parties began living together in Sydney, the mother deposes that the father recommenced his perpetrating violence, sexual abuse and threats towards her.

7. The mother deposes that the parties separated on a final basis following an incident on 11 June 2016 in which the father threatened to kill the mother and her sister, and physically assaulted the mother.

8. A Provisional Apprehended Domestic Violence Order (“ADVO”) was made on 5 September 2016 to protect the mother and child from the father.

9. On 16 April 2017 an incident occurred in which the father physically assaulted the mother, by grabbing her by the hair and pushing her to the ground, attempting to take the child from her, calling her a “prostitute” and threatening to kill her, he grabbed the mother’s phone and handbag. As a result of this incident, the mother sustained injuries to her nose, foot and knee. The incident was witnessed by three independent witnesses.

10. The father was charged by the Police with various offences. As a result of this incident a final ADVO was made for the protection of the mother and the child. The father entered a plea of guilty to charges of “Stalk and Intimidate” and “Common Assault”. He was convicted of the offences and sentence was deferred upon him entering into a good behaviour bond for a period of 18 months.

Current circumstances

1. The father asserts he is unemployed and a full-time student studying for a trade certificate. He holds a subclass 500 (Student) visa, which is valid till 5 August 2020.

2. The mother, who works limited hours in retail, holds a subclass 485 (Temporary Graduate) visa, valid until 3 May 2020.

3. The mother suffers chronic neck pain, which has resulted in her having to reduce her work hours. She is struggling to support herself and the child. She receives no support from the father.

4. The mother is currently unable to afford to pay for private health insurance for herself and the child. Having private health insurance is a requirement of her visa and as such she is in breach of her visa conditions and her visa is likely to be revoked.

5. The mother deposes that she is under financial stress and is being evicted from her rental property. She wishes to return home to Country C with the child, to avoid being placed with the child in immigration detention. The mother has family support in Country C.

The Parties’ Visa Status

1. Neither party has the right to remain in Australia other than on a temporary basis as provided for in their respective current visa.

2. The parties were assessed by a Single Expert Witness (Exh “C”) in regards to their immigration status and the likelihood of them residing permanently in Australia.

3. As to the likelihood of the father obtaining permanent residence in Australia, the Expert opined:

   There is no clear permanent residence pathway for the Father in any occupation at this time. If the father is able to improve his English test results, obtain a positive skills assessment from VETASSESS, meet the pass mark of 65 points, and/or find an employer sponsor, the father may qualify for permanent residence as a … Project Manager. Alternatively, if the father is able to improve his English test results, complete his Certificate IV, obtain at least 3 years of relevant PGE as …, obtain a positive skills assessment from TRA meet the pass mark of 65 points, and obtain an NSW nomination, the Father may qualify for permanent residence as a ….

4. The Expert went on to consider the father’s criminal history and that this may render his current Class 500 Visa liable to cancellation under s 116(1)(e) Migration Act 1958 (Cth). It is apparent that the expert only knew of the father’s ADVO and was not aware of nor was he informed of the father’s further criminal convictions. The father made application to renew his visa in May 2018 and in doing so failed to disclose to the Department such criminal convictions. It is to be inferred that the father now faces the prospect of his visa being cancelled and his deportation from Australia.

5. As to the likelihood of the mother obtaining permanent residence in Australia, the Expert opined:

   There is no clear permanent residence pathway for the Mother in any occupation at this time. If the Mother is able to improve her listening/English test results, obtain 1 year of relevant post-study experience and complete an ACS Professional Year program, obtain a positive skills assessment from ACS, meet the pass mark of 65 points, and/or find an employer sponsor, the Mother may qualify for permanent residence as a ...

6. It is not the mother’s wish to remain in Australia. She seeks to return to her family and her country with the child. It appears that the father will be required to do so in any event. The parties can engage in proceedings relating to the child in Country C.

Interim Parenting and Orders/Injunctions

1. Section 68B of the Act provides:

   (1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)an injunction for the personal protection of the child; or

   (b)an injunction for the personal protection of:

   (i)a parent of the child; or

   (ii)a person with whom the child is to live under a parenting order; or

   (iii)a person with whom the child is to spend time under a parenting order; or

   (iv)a person with whom the child is to communicate under a parenting order; or

   (v)a person who has parental responsibility for the child; or

   (c)an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of the child; or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d)an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

   (2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

2. The power in s 68B is to make such orders as are appropriate for the welfare of the subject child or children. Clearly the best interests of the child are of great importance but not paramount: CDJ v VAJ [1998] HCA 67.

3. In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121.…………In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   122.Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.”

1. In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and 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.

2. In Banks & Banks [2015] FamCAFC 36 the Full Court said:

   47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.

   50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

The Law

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],

   b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].

6. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. In this matter there is unequivocal evidence of family violence as a consequence of the father’s criminal convictions. Such violence was perpetrated in the presence of the child. The presumption shall not apply.

8. If the presumption in s 61DA were to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. Such is not the case here.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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. The child has an established relationship with the mother as the primary carer. It is important that such relationship be protected and that it continue. More recently the father has seen the child under supervision. The supervision notes reveal to some extent a disengaged father and a child resistant to his attention.

3. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). In the circumstances of this matter the protective concerns as to the child are of prime concern. The father’s conduct as asserted and as proved by his criminal convictions is aberrant and in itself almost determinative of the present application.

The Additional Considerations

1. Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:

   a)The effect of the mother’s proposal to allow her and the child to travel to Country C will allow her to absent herself from the father whom she fears for good reason. The child will be in a settled environment in Country C with the mother having support of the extended maternal family. The father may at his election (or indeed involuntarily) return to Country C and seek family orders there.

   b)The mother has been the child’s primary carer and there are no issue as to her parenting capacity. The father appears to be somewhat disengaged in supervised visits.

   c)The father has demonstrated little insight into his responsibility as a parent, perpetrating violence on the mother in the presence of the child. He has demonstrated a poor attitude to the child.

   d)There has been significant family violence perpetrated by the father in respect to which he has been convicted following a plea of guilty. There is now a final ADVO in place for the protection of the child and the mother. In reality, the best protection is for her not to be in Australia.

   e)It may be that the orders may bring an end to these proceedings in circumstances where it is readily apparent that both parents in any event will be required to leave Australia for visa breaches or at best for the father when he finishes his studies if he is not deported in the interim.

2. In all the circumstances it was appropriate for the welfare of the child and in the best interest of the child that orders were are made as set out above.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 December 2018.

Associate: 

Date:  13 December 2018