Mousa and Kamil and Anor

[2018] FamCA 740

FAMILY COURT OF AUSTRALIA

MOUSA & KAMIL AND ANOR [2018] FamCA 740

FAMILY LAW – CHILDREN – Application for order compelling party to provide child for medical testing – whether order appropriate – where insufficient evidence to demonstrate impact upon party – where insufficient evidence to demonstrate what medical testing may involve – where not appropriate to make the order – application refused.  

Family Law Act 1975 (Cth) ss 64B and 68B

APPLICANT: Mr Mousa

RESPONDENT: Ms Kamil

SECOND RESPONDENT: Mr Yaman

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 525 of 2017

DATE DELIVERED: 14 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms M Davis
SOLICITOR FOR THE APPLICANT:	Phelps Reid Foster Johnson

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE SECOND RESPONDENT:	Dobinson Davey Clifford Simpson
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mrs J Lloyd

Orders

1. I order that the oral application to require Mr Mousa to make X available for medical assessment with a particular doctor is refused.

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 Mousa & Kamil and Anor 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 CANBERRA

FILE NUMBER: CAC 525 of 2017

Mr Mousa

Applicant

And

Ms Kamil

Respondent

And

Mr Yaman

Second Respondent

REASONS FOR JUDGMENT

1. An application has been made to compel Mr Mousa, who has sole parental responsibility, to deliver the child, X, for medical examination in order to assist her father, the Second Respondent, in applying for a Country B visa. 

2. The context is that the Father lives in Country B and is currently partway through a visa application process, which means that he is unable to leave Country B because if he does so, there is a risk that he will not be allowed to re-enter the country. 

3. The context is further that the only available carers for the child are Mr Mousa and his wife.  They have advised the Court yesterday that they cannot any longer continue to care for the child, at least not past the next allocated Court date in two weeks’ time.

4. The father, as noted above, lives in Country B.  It was indicated at yesterday's proceedings that there is some potential for there to be an agreement for the child to travel to Country B to stay there on an interim basis, although it is necessary for the relevant material to be filed in order to establish whether or not such an order is in the child's best interests. 

5. The mother, by virtue of previous interlocutory orders, is at present unable to be a carer for the child.  At present I do not know if she will make an application to change that position. 

6. A question arose as to the power of the Court to make the orders that were sought, noting the orders that were sought were not set out in the Application in a Case that was filed on 22 August 2018 by the Second Respondent, but were identified to some degree in his affidavit material and orally articulated. It was sought that the child be made available for medical assessment with a particular doctor.  That particular doctor is a doctor nominated by the Country B authorities who would be able to assess the child for the purposes of the Father's visa application.

7. Section 64B(2)(i) identifies a parenting order is an order, amongst others, relating to any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.  I will assume on the basis that taking the child to the doctor to facilitate the migration or visa application of the Father and by connection, the ability of the child to live with the Father by virtue of his visa status, is an aspect of her welfare and/or of parental responsibility which would give me the power to make the order as a parenting order and to direct such a step.  Assuming that to be the case, without necessarily determining it at this point, there is then injunctive relief sought to compel a party, being Mr Mousa, who currently holds sole parental responsibility, to provide the child for the medical testing. This appears to be an application for injunctive relief pursuant to s68B on the basis that it is for the welfare of the child. 

8. The test then for making such an injunction is whether it is appropriate.  As noted, the orders sought were for the child to be made available for medical assessment with a particular doctor.  While the timeframe for the assessment of the child is set out, there is no identification of how the testing might take place, what it might involve, precisely when it might happen or what imposition it will impose upon Mr Mousa and his wife.  They oppose having that requirement imposed on them.  They point to the question of whether or not there is urgency in the application and assert there is no need for the order to be made at this point.  The Second Respondent asserts some urgency because of the timeframe in relation to his visa, which has sought that the assessment of the child take place within a particular timeframe.  In the context of what is an application supported by reasonably scant evidence, the annexed correspondence indicates that the Second Respondent can identify to the Country B authorities difficulties that he is having in complying with the timeframe that they have set.  It should further be observed that at this stage I am unable to know or assess the likelihood of an order being made that X may go to the Father in Country B and therefore the impact of the uncertain status of his visa application.  I am not aware either whether the uncertainty of his visa application status would stop the child in any event travelling to Country B, should that be sought in the interim. 

9. At this point, given those uncertainties, it has not been established that it is appropriate to compel Mr Mousa now to deliver the child for medical testing.  In particular, I do not know what it will require of him or the burden that it will place upon him, as such, the oral application is refused.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 September 2018.

Associate: 

Date:  14 Sep. 2018