Mousa and Kamil and Ors (No 2)

[2018] FamCA 815

FAMILY COURT OF AUSTRALIA

MOUSA & KAMIL AND ORS (NO. 2) [2018] FamCA 815

FAMILY LAW – CHILDREN – Interim Parenting – interim overseas relocation – where child’s father seeks that the child relocate to live with him overseas - where child living with her step-sister’s father – where step-sister’s father no longer willing to care for the child – where very limited evidence as to the child’s relationship with her father – where Director-General of the Community Services Directorate indicates that should the child not relocate, emergency care may be warranted – where child’s mother seeks the child live with her - where child’s mother supports the child going to the father in preference to an emergency placement with the Department – where in child’s best interests to live with her father overseas on an interim basis.

Family Law Act 1975 (Cth) s 60CC.

APPLICANT: Mr Mousa

RESPONDENT: Ms Kamil

SECOND RESPONDENT:	Mr Yaman
INTERVENOR:	Director-General, Community Services Directorate

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 525 of 2017

DATE DELIVERED: 28 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Phelps Reid Foster Johnson Lawyers

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE SECOND RESPONDENT:	Dobinson Davey Clifford Simpson
SOLICITOR FOR THE INTERVENOR:	Legal Services, Community Services Directorate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J Lloyd

Orders

1. Until further order the child, X (the child), born … 2015, will live with her father, the Second Respondent, Mr Yaman, in Province C, Country B and the following provisions shall apply in relation to the child’s travel to Country B:

   (a)The Second Respondent’s wife, Ms Yaman, will collect the child from Mr Mousa’s home at a time agreed between Mr Mousa and Mr Yaman within 72 hours of an Australian passport being issued for the child;

   (b)Mr Mousa will deliver up the child’s passport to Ms Yaman; and

   (c)Ms Yaman will accompany the child on her travel to Country B on the next most convenient flight.

2. Ms Yaman is permitted to take the child X, (born … 2015 to a place out of Australia in accordance with s 65Y(2)(b) of the Family Law Act 1975.

3. Pending the final hearing, during any period that the child is living with the Second Respondent, the Second Respondent will facilitate the child the child having Facetime contact with the First Respondent, Ms Kamil, at least three times each week.

4. Pending the final hearing, during any period that the child is living with the Second Respondent, the Second Respondent will facilitate the child having Facetime contact with her stepsister Y, born … 2007, and the Applicant, Mr Mousa, at least once a week.

5. The interim orders made on 13 September 2018 be discharged upon the Second Respondent notifying the Court and all parties that an Australian passport has been issued for the child and thereafter pending further order, the Second Respondent father have sole parental responsibility for the child in relation to medical matters, but will otherwise share parental responsibility with Ms Kamil.

6. Insofar as it is reasonably practicable to do so, prior to exercising sole parental responsibility regarding medical matters, Mr Yaman shall communicate with Ms Kamil regarding those decisions.

7. The matter is listed for further directions on Monday 17 December 2018 at 10am.

8. The Respondent Mother, Ms Kamil, is granted leave to attend by telephone, provided she advise the Registry seven days in advance of the listing of her intention to do so.

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 Ors 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

And

Director-General, Community Services Directorate

Intervenor

REASONS FOR JUDGMENT

1. The second respondent in these proceedings, who is the father of the child X, aged 3, born in 2015, seeks interim orders to cause the child to live with him in Province C, Country B,[1]  pending the final hearing.

   [1] Amended Application in a Case filed on 26 September 2018.

2. The child has been living with the father of her half-sister, Mr Mousa, since August 2017.  Currently the orders that govern that arrangement provide that he has sole parental responsibility and that she lives with him.  There are also arrangements for her to spend time with her mother.  Mr Mousa has indicated to the Court that he will no longer have the child live with him, although he has indicated that she can remain with him for a further seven days pending her hopeful move to Country B.  He has also indicated, through his lawyer, that he would facilitate the child spending time with her father's wife, who has indicated that in the event that the child is to move to Country B on an interim basis she will come to Australia to spend time with the child and then take the child to Country B. 

3. The child has not lived in the same household as her father since she was about one year old.  Since February 2018 the child has spent time with her father by video link on a twice weekly basis.  Prior to that she spent very little time with him by video link, so little time that the family report, which was prepared in March 2018 and which recommended that the child live on an interim basis with Mr Mousa, recommended that should there be a reintroduction of the father to the child, this should be facilitated by supervision coming from Mr Mousa’s family.  However, since that time, the father has had regular and engaging time via video link on a frequent basis. 

4. The background to these proceedings are that the father was in a relationship with Ms Kamil, who is the child's mother, from about the end of 2013/start of 2014 for a period of about two and a half years.  During the relationship the father travelled to Province C in August 2016.  His parents and siblings live in that region.  As noted, the child was aged about one year old then.  While the father was in Province C he ended the relationship with the mother, he says in August 2016.  It is unclear what degree of contact he then had with the child, although it appears that there were two occasions of video contact between July 2017 and February 2018.  As noted above, it has become more regular since then, occurring on a twice weekly basis. 

5. The father is in the midst of applying for permanent residency in Country B.  He is now married to a Country B woman who has a son.  He says he cannot leave Country B at present to return to Australia, where he is a citizen, because he is concerned that there is a risk that he may be refused re-entry pending his finalisation of the application for permanent residency.  He notes that he has a criminal conviction in Australia which, it is inferred, might cause him trouble on an attempt to re-enter Country B.  

6. The father has a supportive wife, in the sense that she is supportive of the child coming to live with them.  She has shown support in a financial and in a practical manner, and she has a home in Province C.  As indicated earlier, the wife is prepared to travel to Australia to collect the child and to care for the child pending the child receiving a passport.  However, despite that willingness to facilitate a relationship, her relationship with the child is quite limited, being limited to some Facetime occasions only. 

7. There is in this case, at best, very limited evidence as to the nature of the relationship between the child and her father.  They have had a very limited opportunity to develop a relationship following his move to Country B.  However, there has been a significant change in the nature of their relationship since the family report was prepared towards the start of this year, in that the relationship appears to have improved markedly and there has been a significant increase in the opportunities to exercise that relationship.

8. Regarding the application for the child to live with him on an interim basis, Mr Mousa, who currently holds sole parental responsibility, neither consents to nor opposes the application. 

9. The mother supports the child going to the father in preference to the spectre of the child going into an emergency placement with the Department, who has joined proceedings.  There is a significant risk of the child going into an emergency placement on the basis that Mr Mousa will shortly cease his care of the child.  The mother's preference is that the child would go to live with her, however, she has not filed an application and has filed little material. 

10. Previous orders do not provide for the child to live with the mother, out of concerns that the child may be exposed to family violence if with the mother.  The mother has indicated that she hopes to be able to, in the future, provide material which would support the child living with her and thought that this might happen, potentially by virtue of an assessment made by the Director-General that she hoped would evidence her suitability to have the child live with her.  She currently lives in Brisbane. 

11. Having joined the proceedings the Director-General’s position is that the Director-General is available on a fall-back basis if the Court determines that the father is not suitable to have the child go to live with him.  In the event that the Director-General is fallen back upon, the Director-General seeks orders for sole parental responsibility and for the child to reside as directed by the Director-General.  The Director-General has joined proceedings under circumstances where, at the commencement of today's hearing, there was uncertainty as to what, if any, relative might be available to care for the child.

12. The Independent Children's Lawyer (“the ICL”) is supportive of the father's application, in particular in the face of the alternative option that the child may need to enter into an emergency placement. 

13. The advantage of the emergency placement is that it may, to some degree, facilitate a relationship continuing between the child and her sister.  Perhaps the one constant throughout the child's life is that she has lived with her older sister, firstly, when she lived with her mother, and secondly, while she has been living with Mr Mousa.  However, it is unclear the degree to which that relationship would be able to be facilitated should the child go into emergency care.  The Director-General has expressed a positive facilitative attitude to maintaining that relationship, however, has conceded that there are limitations in the conduct of emergency care for the child.  If she was to enter into emergency care, while the preference of the Director-General would be to seek to maintain the stability of that care, the Director-General has candidly noted that that may not be possible in this case.  It may depend on how the child fares within that emergency care, and how the emergency carers go with dealing with the child. The Director-General has indicated that there may be issues with other children also in emergency care.  The Director-General conceded that the sequence identified by the ICL, that is, where historically there has been a change in care for the child from her mother to Mr Mousa and that there would, if she enters into emergency care, there would be a change to people who are unknown to her for an unknown duration of placement for an indeterminate stability of circumstances.  That sequence has been conceded as potentially being the case by the Director-General.  The Director-General's candour under these circumstances is appropriate and of assistance in determining what is best for the child. 

14. The ICL says that those potential circumstances support, in the interim, the child moving to be with her father.  Although the relationship between the child and her father is at present limited, the ICL notes, and I accept, that since February 2018 the father has taken every opportunity to foster that relationship with the child.  It is noteworthy that that has had to happen under circumstances where he lives in Country B. the child lives in Australia and so the timeframes to facilitate this relationship are, at best, difficult. 

15. The ICL points to the father as being a person with whom the child currently has a degree of familiarity and it may also be observed, as was indicated by his legal representative, that he has taken significant steps to support the child's move to be with him, as indicative of some dedication on his part to the child and their relationship. 

16. Those steps include the preparation of an appropriate bedroom for the child, he has family support around him for himself and for the child, he has booked a flight for the child to travel to Country B and his wife has indicated her preparedness to travel to facilitate that.  He has indicated through his lawyer his preparedness to meet the financial costs of the child's move to Country B. 

17. The mother and the father are presently in conflict as to what will be appropriate orders to be made for parental responsibility for the child.  The father seeks sole parental responsibility but his legal representative put that as being a purely practical matter and she directed it in particular to the question of ensuring that the child would be able to obtain medical treatment, should she require that in Country B.  There is certainly a benefit to the child in there being a certainty of authority in capacity to authorise medical treatment if she is living with the father in Country B. 

18. The mother seeks an order for equal shared parental responsibility.  In these interim proceedings, that have unusual and complex factual circumstances, it is not appropriate to apply the presumption in favour of equal shared parental responsibility, particularly where, until now, sole parental responsibility has been vested in a third party who is not a parent.  There are two parents who are uninvolved at present in the child's direct care and there is the prospect of one to have effectively the sole care of the child. 

19. The key issues amongst the s 60CC considerations, which are the matters to be considered in order to determine what is in the child's best interests, include the possibility of meaningful relationships with her parents and the benefits of those, the nature of her relationships with the various protagonists, their capacity to nurture her, the potential deleterious effects of an emergency care arrangement and the need to protect her from exposure to the deleterious effects of family violence. 

20. What tells against the father's application is that he has a limited relationship with the child, he is untried in that relationship recently, and the child would be exposed to new surroundings, a new country and new care arrangements.  Against that is the prospect of her entering into emergency care with people with whom she has no relationship, which would be an untried relationship for her, potentially unstable, providing her with new and unfamiliar surroundings and new and unfamiliar care arrangements and with limited capacity to facilitate meaningful relationship. 

21. Hence, while the father has only limited relationship with the child the steps that he has taken indicate that it is a growing relationship.  There is a degree of familiarity, he appears committed to the child, and he has some capacity to nurture her.  I accept the ICL’s position that there is a superiority in those arrangements for the child with that familiarity of her father and what appears to be a loving, albeit limited, relationship.  Even though it is disruptive for her to be moved to Country B and to commence living with her father the alternative options are significantly less desirable when it comes to the fostering of a meaningful relationship between the child and either of her parents and the capacity then for the child to be nurtured. 

22. Those aspects mean that it is sufficient to justify what might otherwise be thought of as an unusual outcome.  The unusual facts of this case mean that it is in the child's best interests on an interim basis to live with her father in Country B, despite the limited relationship between the child and her father.  This limited relationship impacts on the allocation of parental responsibility. 

23. The circumstances that the child faces means that there should not be an order for equal shared parental responsibility.  The father should be able to make important medical decisions with an adequate authority to ensure that they can be brought into effect in Country B to ensure that the child is able to receive treatment.  He, however, should still be required to consult with the mother in relation to those decisions.  As to the balance of the parental responsibility determinations, those should be shared with the mother. Where long-term decisions need to be made for the child, this should be in a manner which is shared between both of the parents on an interim basis.  The orders that the father seeks will help to facilitate relationships between the child and her mother and the child and her sister, and orders should be made in the general terms as those sought by the father.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 September 2018.

Associate:

Date:  8 October 2018