MIRZA & LANGLEY

[2020] FCCA 3305

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIRZA & LANGLEY [2020] FCCA 3305

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR MIRZA

Respondent: MS LANGLEY

File Number: SYC 3960 of 2020

Judgment of: Judge Boyle

Hearing date: 20 November 2020

Date of Last Submission: 20 November 2020

Delivered at: Sydney

Delivered on: 20 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Qualia

Solicitors for the Applicant: SS Lawyers

Counsel for the Respondent: Ms Mattar

Solicitors for the Respondent:	Kalpaxis Legal Pty Ltd
Solicitors for the Independent Children’s Lawyer	Ms Jenkins of Russell Kennedy Aitken Lawyers

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The matter is listed for possible interim hearing on 20 January 2021 at 10:00am.

2. The mother shall make all arrangements necessary to ensure that the child, X born 2014 (hereinafter “the child”), is available at Sydney airport on 12 December 2020 for collection by the father.

3. Within 7 days of today’s date, the mother shall provide the father and Independent Children’s Lawyer (ICL) with the details of the flight, including the arrival time.

4. The parties file and serve a minute of orders sought by 18 January 2021.

5. The parties file and serve an affidavit by 24 December 2020 as to their proposals for the care of the child from 2021.

6. The mother’s affidavit shall address the following;

   (a)who will look after the child when she works;

   (b)her understanding of the allegations against her husband with respect to the Facebook posts;

   (c)what knowledge she has, if any, of apprehended violence orders made against her husband by his former partner; and

   (d)what contact her husband has with his children from a previous relationship.

7. Leave is granted to the ICL to issue in excess of five (5) subpoenas for the production of documents.

8. The mother forthwith advise the father in writing of the name of the child’s school, address and telephone number.

9. Each party shall keep the other advised, in the event the child suffers from a serious illness or medical emergency, as soon as practicable thereafter.

10. The father shall communicate with the child by FaceTime on Fridays and Sundays between 5:00pm and 6:00pm AEST.

11. The mother shall communicate with the child by FaceTime on Fridays and Sundays between 5:00pm and 6:00pm AEST from 12 December 2020.

12. Each parent shall facilitate the child communicating with the other parent at any time the child may wish.

13. Each of Mr Mirza born 1983 (male) and Ms Langley born 1984 (female) and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2014 (female) from the Commonwealth of Australia.

14. X born 2014 (female) be and is hereby restrained from leaving   the Commonwealth of Australia.

15. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of this Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

No. SYC 3960 of 2020

MR MIRZA

Applicant

And

MS LANGLEY

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is a complex parenting matter concerning the child of the parties X, born 2014, now aged six.  The parties married in 2013 and the child was born in Country B, where the parties were living at the time.  

2. In or around June 2015 the mother moved to Australia in order to complete a degree, so she could practice in Australia. The child remained with her father and the paternal grandparents in Country B. The mother returned to Country B when she was able to do so, to see the child and the father.

3. In 2018 the father and child moved to Australia.  In February 2019 the father commenced working as service worker at employer C. 

4. There were significant issues in the relationship between the mother and the father. There was an incident alleged to have occurred in Country B between the mother and father, whilst she was pregnant. There was an incident in April 2020 where the mother alleges that the father hit her, and attempted to choke her.  She reported the matter to the police and a provisional AVO was made for her protection.  That matter was listed earlier this year, however the mother did not appear at court.  The matter is listed for hearing in March 2021.

5. The parties separated on a final basis on 14 April 2020, when the mother left the home and received some assistance at a refuge. In about April 2020 the mother met her new husband.  On 11 May 2020 the mother sought a divorce in Country B.  She was granted a divorce on 17 May 2020 under Islamic law. The mother remarried on 21 May 2020, approximately six weeks after the parties separated.

6. The mother’s husband swore an affidavit on 18 September 2020 which makes no reference to previous apprehended violence orders made against him for the protection of his then partner, and the children of that relationship.  His affidavit paints a picture of someone settled in full time employment in Victoria, with no intention of living elsewhere. The affidavit makes no reference to the plan to relocate to Queensland.   

7. The affidavit makes no reference to any previous relationship, or his children.  I do not know anything about those children, or what relationship he has with them now.  I have before me exhibit M1, which is a national police certificate that says there are no disclosable court outcomes recorded against Mr D. It makes no reference to any apprehended violence orders or intervention orders, nor does it purport to cover those matters. 

8. The mother makes no reference to those matters about her husband.  This is particularly relevant given that the mother has referred to appalling threats made to her, her family, and particularly her sister in Country B through Facebook. Her affidavit refers to her belief, confirmed to the family consultant, that those threats were made by the father.  This is set out at paragraph 7 of the Child Dispute Conference Memorandum.  The father denied the allegations. 

9. The Victorian Police have investigated the threats.  Following their investigation, the police formed the view that those threats were made by the mother’s current husband. 

10. This gives rise to two matters that require consideration. It is possible that the mother and her husband determined that making appalling threats purportedly by the father may support the application to remain in Queensland, or Victoria. The alternate is that the mother may genuinely not have known the threats were coming from her husband. That raises questions about the nature of their relationship, and why her partner would put her in fear, and what he intended by that. 

11. The affidavits filed by the mother and her husband make no reference to any of those matters.  So far as Victorian Police and the family consultant were concerned, they accepted that the mother was genuinely frightened by the threats.  The lack of any explanation of those matters is very troubling. 

12. This is a case, as the ICL has suggested, about balancing risks for this child.  She is currently in Queensland.  She is at the third school that she has attended this year.  The school term in Queensland concludes on 11 December 2020.  It will then be necessary to determine schooling for the following year, on the competing interim applications.

13. The mother’s application seeks orders for sole parental responsibility, that the child live with her, and that there be contact through a contact centre in Melbourne.  During the course of today, a minute of orders has been provided on the mother’s behalf, marked as exhibit M2, which seeks orders for equal shared parental responsibility for the child, that she live with the mother, that the mother provide to the father the contact number and address of the child, and notify him of any change to those details, that in the event of any childhood illness or emergency that he be contacted and advised, that there be supervised time with the father, a family report and for some FaceTime communication.

14. The father seeks that the child live with him.  In the past eight months she has spoken to her father twice. 

15. The Court is in a difficult position.  As a consequence of the incident in April 2020, the father has been charged with two counts of common assault, one of stalking/intimidation and one of intentional choking. Those charges are being defended by him. 

16. Counsel for the mother says she has gone to Queensland to work in Town E.  If she remains there for one year she will gain the qualifications necessary to work in an unrestricted basis within Australia.

17. I do not have any evidence about any of those matters.  They are not referred to in the mother’s affidavit.  That, in itself, is of concern.  The ICL has spoken with the child’s current school today. I have accepted statements from her from the bar table, given the problems with the evidence, that the child has been enrolled for the last three weeks.  The school was apparently contacted two weeks before that by the mother about the enrolment. I am taking these time frames as approximate.  Even so, that suggests that before the affidavit was filed on 22 October 2020, she must have been aware about moving to Queensland.

18. At one point during the course of submissions, the mother raised directly with me that she knew about the move prior to filing the affidavit. She told her solicitor but because she was then employed, she was no longer eligible for Legal Aid.  The affidavit was filed with everyone knowing that the facts in it were now incorrect.  I do not particularly hold the mother to that, because she was speaking directly without the benefit of her solicitor being able to put those matters into some context. 

19. However, it does not paint a picture that gives the Court confidence, where documents are filed when they are not correct as at the date of swearing. The Court is left in a position of being very unclear about what the party’s position is. 

20. An additional overlay to this matter is the COVID-19 pandemic, and that the border between New South Wales and Queensland is closed at the date of the hearing.  Precisely what is going to happen with the border closure is unclear.  I have no evidence about what the current restrictions would mean for the child being able to spend time with the father. The parties appear to be operating on the basis that travel to Queensland will require quarantine for two weeks, whether that be the father going up to spend time, or the child returning from New South Wales.  Neither of these are particularly helpful options.

21. I have serious concerns about risk for this child.  In the mother’s household, those risks pertain to the child being cared for by the mother’s husband.  He is a person this child has known since April 2020 and appears to have been living with since May 2020, although that is not entirely clear.  I have already referred to matters pertaining to his previous relationship, from the Victorian Police records.  There are five or six family violence incidents referred to by Victorian Police. Apprehended violence orders were taken out over a period of two years between the mother’s husband and his former partner.  Incidents of violence are reported to have occurred in front of their two children, then aged about eight and ten.  The father has outstanding assault matters against him, arising from an incident with the mother.

22. The mother’s position is that she wants to be able to remain in Queensland.  She wishes to complete the work that will enable her to work in Australia. 

23. The father is in Sydney.  He is working in casual employment.  He says he is considering getting a transport license.  He is able to care for the child around work. 

24. The mother has two brothers in New South Wales.  She has no family anywhere else in Australia, apart from her now husband. 

25. The child should be able to see out the rest of this school year in Queensland.  There are risks inherent in that occurring due to the care arrangements in her mother’s home.  Risks arise for her in a variety of ways because of the manner in which her parents have dealt with her.  I am not being critical that people do what they need to do for work, and other reasons.  For the first four years of her life, X lived in Country B.  She was then more in the care of her father than of anyone else available to her in Australia.

26. The parties then lived together in Australia.  From April 2020 she has been excluded from her father, who seems to have been the one constant in her life.  The mother has put herself in a place where, because of the border restrictions, the father cannot readily travel to see the child.  Town E is a significant distance from NSW.  That makes travel difficult.  We are not talking Airport F, or Brisbane Airport. 

27. The information before me is insufficient to really assess the risks in the mother’s household, other than to understand that there are risks which are not acknowledged by the mother.

28. What I propose doing is making orders in line with the Independent Children’s Lawyers submissions, which will require the child to travel to Sydney on 12 December 2020, where she will be collected by her father from the airport.  I will bring the matter back before the Court in January 2021 so that evidence can be available as to the situation with respect to the mother, her husband, and the father.  It may be that this is a holiday period for the child, and she resumes living with the mother at the start of the school term.  I am not ruling that out as an option.  At present I do not have any details about how the child would be cared for in the mother’s household. 

29. From the Father’s perspective Suburb G Primary School is available.  That is the school she attended earlier this year, and she could return there.

30. The mother needs an opportunity to put before the Court evidence about care arrangements, what she understands about the threats made through Facebook, the situation in her household, her husband’s communication or contact with his children, and what the situation is with respect to current or past intervention or apprehended violence orders against him.  These are all relevant considerations in determining risk for this child. 

31. This is the balance of risk, with the benefit to the child of a meaningful relationship with each of her parents.  The situation as it stands would not permit her to have a meaningful relationship with her father.  There have been two phone calls between father and child since separation. The child is in Queensland behind a closed border. 

32. If the determination is made that the child should be living with the mother on an interim basis, that door is not closed.  It may be that this is a holiday arrangement, which gives this child the benefit of resuming a meaningful relationship with her father.  The evidence suggests a past connection between them, and what one would assume was a strong relationship given the care arrangements.

33. The Child Dispute Conference Memorandum raised various concerns about the various proposals.  It is notable that the family consultant was not made aware of the detail of the concerns about the mother’s husband.  The father raised some matters with the consultant.  The mother stated that the father had sent the threatening messages, and not suggested that it was her husband.  I surmise given how confusing this is, that the family consultant may not have been aware that that was the nub of that particular dispute.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate: 

Date: 4 December 2020