NABIZADA & SOHRABI

[2019] FamCA 289

FAMILY COURT OF AUSTRALIA

NABIZADA & SOHRABI [2019] FamCA 289

FAMILY LAW – CHILDREN – Undefended hearing – Where it is not disputed that the children should live with the mother – Where the father seeks and the mother opposes him having equal shared parental responsibility – Where there are serious allegations of abuse against the father – Where the mother seeks that the children spend no time with the father – Where the Court makes orders that prioritise the children’s safety over enhancing or maintaining a relationship between the children and father – Sole parental responsibility to the mother – No time with the father – Father restrained from contacting the mother or the children by any means whatsoever – Airport Watchlist Order made – Children’s names to remain on the Watchlist until they turn 18.

Family Law Act 1975 (NSW) s 60CC

APPLICANT: Mr Nabizada

RESPONDENT: Ms Sohrabi

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: ADC 3908 of 2013

DATE DELIVERED: 10 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 April 2019

REPRESENTATION

There was no appearance by or on behalf of the Applicant Father

SOLICITOR FOR THE RESPONDENT: Ark Law Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords, Solicitors & Conveyancers

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 Nabizada & Sohrabi 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 SYDNEY

FILE NUMBER:  ADC 3908 of 2013

Mr Nabizada

Applicant

And

Ms Sohrabi

Respondent

REASONS FOR JUDGMENT

1. These are proceedings that I heard and determined yesterday.  I indicated to the parties that I would give reasons for judgment later that day.  That did not turn out to be possible as there was another matter in the list that took all day.  These are the reasons for the orders made yesterday.

2. These are proceedings relating to two children:  Y born in 2006 and Z born in 2010 (“the children”).  The proceedings were commenced by Mr Nabizada (“the father”) in the Federal Circuit Court of Australia in 2013.  There is no dispute about the children living with Ms Sohrabi (“the mother”), but the father seeks and the mother opposes him having equal shared parental responsibility for the children and spending time with them. 

3. The parents are from Country C.  They arrived in Town F in 2013 after travelling from Country D.  They were placed in detention for approximately two months and then transferred into community housing in Town H.  The mother and the children left the father in 2013.  The mother made allegations of violence against the father to the Police.  At that time, the father was not charged with any offences, nor was an intervention order made against him.  Both parents were on bridging visas and were separately supported by a community organisation.  The mother was assisted to move with the children to Sydney by a community organisation. 

4. After separation, the father became distressed and attempted suicide by cutting his wrists.  He was admitted to G Hospital, where he remained for 12 days.  The father did not see the children between August 2013 and March 2014.  After attending the mother’s home in Sydney in March 2014, the father was detained in a detention centre from 23 April 2014 until 30 October 2014. 

5. As a result of his attendance at the mother’s home an apprehended violence order (“AVO”) issued against the father for the protection of the mother, and a final AVO was in place from March 2014 until January 2015.  The mother sought a further AVO in March 2015, and that application came before the relevant court on 7 May 2015 when it was withdrawn.  The mother sought a further interim AVO on 4 December 2015, which was to be heard on 23 April 2016.

6. As at March 2016 when the parents were interviewed by a family consultant in Sydney, the father had not seen the children since March 2014.  The family consultant recorded that the father sought to share parental responsibility for the children and that the mother sought sole parental responsibility for them.  The father sought that the children spend time with him each weekend, and the mother sought that they spend no time with him. 

7. The father told the family consultant that the mother was impatient and that she beat the children.  He alleged that the mother’s allegations against him about family violence were due to her mental health problems.  He denied that he had been abusive towards the mother or the children, or that he had threatened to kill the mother. 

8. The mother made extremely serious allegations about the treatment she and the children had received throughout the marriage from the father.  The allegations included him punching her in the head many times, causing headaches and bruising, him having thrown a glass at her when she was pregnant with Z, pulling her hair, that he was controlling of her, that he frequently verbally abused her in front of the children. 

9. The mother alleged that in March 2014 when the father located her home in Sydney, he came uninvited with a friend of his.  She said that he broke his telephone by throwing it to the ground, and that he put his hands around her throat in front of the children.  The father denies that, saying that he took the children for a walk and only dropped his mobile telephone, which did not break. 

10. The mother alleged that the father beat the children, especially Y, and that on one occasion in Town H when angry, he hit the child’s ankle with a vacuum cleaner pipe, causing swelling and bruising.  She alleged that he did not allow the children to play or to make any noise when he was present in the home.  The mother said that the father had threatened to kill her on several occasions, once being when they were last in Court, and another time by text message to her brother in Country C.  The mother said that she and her children were frightened of the father. 

11. During the interview with the family consultant, the father said that if the government ordered that he could not see his children, he would do it by force.  When questioned further about that statement, the father said that he would go to his children at their school or elsewhere, and that he would not be breaking the law, because they were not included on the apprehended violence order.  He expressed frustration that he was being prevented from seeing his children by this country, and he did not believe that the judge had the right to prevent him seeing his children.

12. Each of the parents alleged to the family consultant that the other drank alcohol to excess and consumed marijuana in the case of the mother and while in Country C, that the father frequently smoked opium.  The parties each told the family consultant that the other parent had poor mental health.  The father told the family consultant that if he thought that there were problems with his children, he would again attempt to commit suicide.  However, later in the interview, he said that he would not do that. 

13. The father told the family consultant that he had been on medication for three years, which he asserted was for sleep difficulties due to his worry about his children.  The father told the family consultant that he believed the mother had re-partnered with a man that they met when travelling to Australia, and that that man has now returned to Country C.  The father alleged that that man had beaten the children.  The father said that he was not in a relationship.

14. The mother alleged that while in Country C, the father was married to another woman while being married to her, by the use of a false identification card.  She alleged that the father was imprisoned for six months while married to her for also being in an intimate relationship with another woman. 

15. The children told the family consultant a similar version of various events to the account given by the mother, including the father throwing a glass at the mother while she was pregnant, and making threats against her.  Some of the incidents were referred to by Z, although in a slightly confused and unsure narrative. 

16. The family consultant considered that the children, and particularly the older child, appeared to be highly aware about the disputes between the parents, and throughout her assessment seemed to be frightened and anxious about the mother being hurt by the father, and about him not being with his mother.  The older boy also told the family consultant about the event when his father hit him with a vacuum cleaner pipe. 

17. The family consultant observed the older child to be anxious, but determined to tell the family consultant about those incidents.  He was highly anxious and distressed, constantly walking in small circles and crying at times while telling his story.  The family consultant made a risk of harm report to the Department of Family and Community Services, and recommended that priority be given to safety over the father’s time with the children.

18. On 23 March 2016, the proceedings were transferred to this Court.

19. On 24 August 2017, interim parenting orders were made in terms agreed between the parties providing for the mother to have sole parental responsibility, providing that certain information in relation to the children was to be provided to the father’s solicitor.  The parents were ordered to arrange with a counselling service for the children to attend a program called the Anchor Supporting Kids Through Separation Program, and an order was made that the proceedings be expedited. 

20. On 10 November 2017, an order was made appointing to Dr B to prepare a report in the proceedings.  Dr B’s report was provided to the Court on 13 February 2018.  Because of concerns raised in the report about the potential for the report to cause distress to the father, the report was initially released to the Independent Children’s Lawyer (“ICL”) pursuant to an order made on 22 February 2018. 

21. On 20 April 2018, the following orders and notations were made:

    1.Dr B’s report dated 13 February 2018 be released to the solicitors for the mother and the father.

    2.The proceedings are adjourned to 9.30 am on 14 May 2018 for the making of trial directions.

    3.Leave is granted to the parties and the Independent Children’s Lawyer to attend by phone on that day.

    4.Leave is granted to the parties and the Independent Children’s Lawyer to restore the matter to the list by arrangement with the associate to Justice Loughnan and the other parties.

    The Court Notes that the mother’s solicitor will read and discuss Dr B’s report with the mother.  The solicitor proposes that that will be done next week.  The mother’s solicitor will notify the father’s solicitor and the Independent Children’s Lawyer when that is to be done and the father’s solicitor will make arrangement to read and discuss the report with the father and a support person on a later date.

22. Dr B reported that the mother is able to meet the children’s needs for food, shelter and protection from harm, the latter being limited by her own capacity to protect from the father.  Dr B reported that the mother is richly able to meet the children’s emotional, intellectual, relational and developmental needs now and in the long term.  An exception to that currently is that the mother has not been able to meet the children’s emotional needs for a sense of security and safety, in part because of her own concerns about the same, some of which may be valid. 

23. He noted that the children were then showing emotional, behavioural and developmental vulnerability, particularly in the school setting.  He recommended some child, parent and family therapy to assist the mother with meeting the children’s special needs in that regard.  Dr B said that in his opinion, the mother has the capacity to constructively engage in such therapy, and with any required associated liaison with the school. 

24. Dr B gained the impression that the father’s expressed desire to be a good father to his older son in the future, to impart soccer skills to him and to teach him about maths and science were genuine at the level of intention.  However, Dr B was concerned that the father had not been able to show a consistent commitment to the children in the day to day, nor to the responsibilities of parenting.  Dr B reported that the father’s capacity to provide for the children’s needs is untested over the last four years, and it was his impression that the father showed impaired capacity when he shared that role with the mother in the past. 

25. Dr B considers that the father does not have the capacity to meet the children’s basic needs for protection from emotional and physical harm arising from his own personality, as to relational and behavioural difficulties, nor the capacity to consistently meet the children’s more complex emotional, intellectual, relational and developmental needs; the latter particularly with regard to the children’s special needs arising from their experience of past adversity and change. 

26. The father made some concessions to Dr B about his behaviour while in Country C.  He admitted that he had a problem with alcohol and with women for six to seven months, and that the mother left him and went to live with her mother.  He confirmed that he had been in jail on three occasions in Country C, and on one of those occasions that was for an alleged affair with a woman.  The father conceded that on one occasion during an argument with the mother, he had thrown a glass and it had smashed.  He contended that the children were not at home on that occasion, and that it was during a period of high stress when his business was in trouble.  Notwithstanding those concessions, the father did not concede that he had struck the mother, and said that he had never threatened her with violence. 

27. Somewhat incongruously with these concessions, the father asserted to Dr B that the relationship with the mother had been happy right up until the time they arrived in Town H.  During one interview with Dr B, the father threatened self-harm, saying, “My main worry is to see my children.  I feel like getting up and running out of this place.  Look what you’ve done to me.  I’ll have to harm myself to make a video of how Australia has treated me.”  Later in the interview, Dr B asked the father about that intention, and the father denied having had any such intention. 

28. The father explained to Dr B that those comments arose from his distress about his plight.  He appeared to be utilising this explanation as another opportunity for coercion rather than acknowledging the potential impact of his extreme threats.  In Dr B’s view, the father’s distressed and disappointed emotional response to being told that he would not see his children or a child that day was understandable and typical for a parent in this context. 

29. But what Dr B found not to be typical was the father’s apparent lack of any mature coping mechanism that might allow him to gather himself and place his distress in a broader context, to pause to consider Dr B’s role and his own need to help Dr B in that role.  What was also not typical was the father’s use of emotionally manipulative and coercive interpersonal strategies to seek to challenge Dr B to alter his interview schedule. 

30. Dr B recommended that the mother have sole parental responsibility for decisions about the children.  He recommended that the children live with the mother, and that they have no stipulated contact or communication with the father face to face or through voice, typed word, internet or any other media until the children reach adulthood, with the exception of the following communication:

    ·Firstly, letters from each child, assisted by the child’s therapist, with input from the mother, or written by the therapist and the mother if the child refused to take part, but with the child informed that that was occurring, so those letters would go to the father on one occasion each year, including relevant news about the child’s development in life.

    ·Next, letters from the father to each child in response to that news, and providing his own news in response to the letter if the father wished to send such a response. 

    ·Dr B noted that while letters are rather old fashioned and one might consider a more modern multimedia for such communications, he recommended sticking with letters and still photographs, as that provided some space for each party, and moderates the intensity of communication to one that fits the aim of maintaining an open threat of connection between the father and a child until a child may wish at some stage in adolescence or adulthood to increase the intensity of the child-father relationship. 

    ·If the mother prefers and is allowed by the Court to keep the location of her residence private, those letters could be sent and received through an agreed party such as the office of a solicitor and could be de-identified by the mother in terms of specifics of location, school, etcetera.

31. From the time each child reaches 16 years of age, each child, Dr B recommends, would have the option to increase their communication with the father, or to commence time spent with the father if they so wish, and if the therapist and the mother deem the same and the staging of the same to be appropriate: 

32. Dr B recommended that the boundaries of any reconnection be quite limited initially.  For example, the option of increased frequency of letters, the use of broader forms of communication such as telephone and internet, but only if initiated by the child, and at an intensity set by the child, a meeting or meetings in the therapist’s office, or time spent in the presence of another adult nominated by the mother, for example, a trusted family friend or a professional supervision agency, to a maximum of a full day with the father at a maximum frequency of one occasion each two months.  If such orders were made, they should not be seen as prescribing any progression in communication or contact. 

33. Dr B considered that it was most likely that the children would not take up those options, or would do so in a limited way as they approached adulthood.  But Dr B felt that there was a reasonable possibility that one or both of the children would use such orders to experiment with a reconnection with the father during the late adolescent years.  The purpose of those orders was that they provide some boundaries and safeguards around each child’s ability to engage in and to modulate and retreat from, if need be, such a process if it did occur. 

34. Dr B noted that the proposal was not an invitation for the father to initiate a connection with or communicate with a child from age 16, or the mother through a child.  The protective orders would stay in place, and any such connection would be initiated only by the child with the knowledge of the therapist and the mother.  Among other recommendations, Dr B recommended that the father engage in therapy.  Dr B recommended the children maintain their current surname.

35. On 5 June 2018, the parties’ solicitors and the ICL attended at Court by telephone and the following orders were made:

    1.The proceedings are adjourned to 10.00 am on 6 September 2018 for final directions if practicable.

    2.Leave is granted to any of the parties to restore the proceedings to the list on giving seven days’ notice otherwise and if that leave is exercised for the purpose of any substantive orders to be made it is to be exercised by the filing of an Application in a Case supported by an affidavit.

    3.Leave is granted to the parties’ representatives to attend by phone on that day.

1. On 6 September 2018, there was no appearance on behalf of the mother, and the father attended in person, and the ICL attended by telephone.  The following orders were made:

   1.The Registry is directed to make arrangements for an interpreter to assist the father on 21 September 2018.

   2.The proceedings are adjourned to 10.00 am on 21 September 2018 for the purposes of making trial directions in relation to these proceedings.

   3.The Court notes that there is no appearance by or on behalf of the mother at 10.25 am today and that the Independent Children’s Lawyer will make enquiries to ensure that there is an appearance for the mother on the adjourned date.

   4.The parties have leave to appear by phone on the next occasion and should contact the associate to Justice Loughnan prior to that date for dial-in details.

2. On 21 September 2018, the mother’s solicitor attended by telephone, the father attended in person with an interpreter, and the ICL attended by phone.  The following orders were made:

   1.The proceedings are adjourned to 9.30 am on 27 November 2018 for making trial directions or for ordering the proceedings be listed for an undefended hearing.

   2.The parties file and, if practicable, serve within two months from today’s date the lay evidence that they wish to rely on, that is one consolidated affidavit from each deponent.

   3.The Court notes that the mother proposes to rely only on her own evidence and that the father proposes to rely on his evidence and the evidence of one other lay witness.

   4.The Court requests that there be an interpreter be available for the father on the adjourned date.

   5.The Court notes that in the substantive proceedings the father will object to the adequacy of the single expert report.

3. On 27 November 2018, the mother’s solicitor attended by telephone, there was no appearance by or on behalf of the father, and the ICL attended by telephone, and the following orders were made:

   1.The proceedings be listed for hearing undefended on 25 January 2019.

   2.The evidence of the lay witnesses, that is to be one consolidated affidavit from each deponent, is to be filed and served not later than 14 December 2018.

   3.The Court notes that if there is no appearance by or on behalf of the father on the adjourned date or if he has failed to file evidence in chief pursuant to the directions made, the hearing on 25 January 2019 will proceed on the mother’s response on an undefended basis.

4. No documents were filed pursuant to order (2) made on 27 November 2018.

5. On 25 January 2019, the mother attended with her solicitor and an interpreter and the ICL was represented by counsel.  There was no appearance by the father.  The following orders were made on that date, 25 January 2019:

   1.The Court Notes that there is no appearance by or on behalf of the father at 10.15 today.

   2.The Court Notes that there is no compliance with the orders that were made on 27 November 2018 in relation to the filing and service of the evidence in chief of the parties.

   3.By the close of business on 18 February 2019 the parties file and serve one consolidated affidavit setting out the evidence in chief on which they seek to rely.

   4.The proceedings are listed for mention only on 21 February 2019 at 10.00 am.

   5.In the event that there has been compliance with the orders today in relation to filing an affidavit by both parties orders will be made on the adjourned date (21 February 2019) to fix the matter for trial on a defended basis.

   6.In the event that there has been compliance only by the mother and there has been no compliance by the father an order will be made on 21 February 2019 fixing the matter for hearing on an undefended basis on her Response.

   7.Leave is granted to either parent to apply in relation to these Orders on giving seven days’ notice to the Court, to the Independent Children’s Lawyer and to each other.

   8.The parties are excused from attending Court on 21 February 2019 if they are represented.

   9.The solicitor for the mother serve a copy of the Orders made today on the father at his address for service as soon as practicable.

6. On 21 February 2019, the mother and the ICL were represented, but there was no appearance by or on behalf of the father, and the following orders were made:

   1.The matter is listed for hearing on 13 March 2019 on a final basis undefended on the basis of the mother’s Response filed 26 November 2015 or such amended Response as is filed and served within three working days from today’s date.

   2.The Court notes that unless leave is granted by the Court or further order is made the parenting proceedings will be determined on the basis of the mother’s Response or an amended Response filed and served in accordance with these Orders on 13 March 2019 without hearing from or taking evidence from the father.

   3.A copy of these Orders be served on the father by the solicitor for the mother at his last known address as soon as practicable.

   4.An interpreter is required for the assistance of the mother for one hour on the adjourned date.

7. On 13 March 2019, the matter was again not ready.  The orders of 21 February had not been complied with.  An amended Response was filed and served on 4 March 2019, and not within the required three days of 21 February 2019.  Notice of the listing had been given to the father’s address for service, but the Response, not the affidavit in support, was served by email. 

8. On 13 March 2019, the following orders were made:

   1.The proceedings are adjourned for hearing undefended on the basis of the mother’s Amended Response filed 4 March 2019 to 10.00 am on 9 April 2019.

   2.The solicitor for the mother forward to the father at his last known residential address a copy of today’s order and of the Amended Response and the supporting affidavit by the close of business on 22 March 2019.

   3.The Court Notes that there is no appearance by or on behalf of the father today.

   4.The costs of the parties of and incidental to the proceedings today are reserved.

   5.The mother is excused from personal attendance on the adjourned day.

9. When the matter came before me today there was evidence that the father had been served at his address for service, and I made the orders sought by the mother.  They were as follows:

   1.The Court Notes that there is no appearance by or on behalf of the father at 10.15 this morning.

   2.Orders are made in terms of paragraphs 1 – 7 inclusive of the orders sought in the Amended Response to Initiating Application filed 4 March 2019, as set out hereunder:

   1.That the mother shall have sole parental responsibility for the children [Y] born … 2006 and [Z] born … 2010 (“the children”).

   2.The mother is to have sole parental responsibility for the children and will make decisions about:

   a.The children’s education,

   b.The children’s religious and culture upbringing,

   c.The children’s health,

   d.The children’s name,

   e.The children’s residence.

   3.That the children live with the mother.

   4.That the children shall spend no time with the father Mr [Nabizada].

   5.That pursuant to section 68C of the Family Law Act 1975, the Father, Mr [Nabizada] shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the Mother, Ms [Sohrabi] or any of the children [Y] and/or [Z], by any means whatsoever including through any third party and further Mr [Nabizada] is restrained from:

   (a)Attending at or being within 100metres of the place of residence of Ms [Sohrabi] and/or [Y] and/or [Z];

   (b)Attending at or being within 100metres of any place of employment of Ms [Sohrabi] and/or [Y] and/or [Z];

   (c)Attending at or being within 100metres or any school or educational institution attended by Ms [Sohrabi] and/or [Y] and/or [Z].

   6.That the father Mr [Nabizada] and his servants and/or agents be and are hereby restrained by an injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children [Y] born … 2006 and [Z] born … 2010 from the Commonwealth of Australia.

   7.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's name on the Watchlist until they attain the age of 18 years old.

   3.The Court Notes that the orders made in terms of paragraphs 5 and 6 of that Application imply a power of arrest without warrant in police officers in certain circumstances.

10. Those orders were appropriate.  They were orders that the father had notice of.  They were orders that he had been told would be pressed in his absence.  In my view, there was no utility or sense in making orders that would provide for contact with the father, given that he was not involved in the proceedings and therefore was not able to agree, or to indicate that he would take up any such opportunity.  In those circumstances, the orders recommended by Dr B would have left the mother with obligations and no indication from the father that there would be any utility in imposing them.  Now, of course, it may be that the children decide at some point to reach out to the father and something can be arranged by agreement between the parties.  In any event the orders sought by the mother were appropriate. 

11. The children have travelled a horrible, difficult journey since their life in Country C.  They travelled by sea and ultimately to Australia; through immigration detention and a relocation apparently to provide a level of distance and protection from the father.  One can only hope that there will now be a period when the mother can focus on her parenting responsibilities. 

12. A significant feature of the proceedings is that there is no contradictor to the mother’s case.  Only her evidence is before the Court.  I have the report of Dr B, which is consistent with the orders that have been sought.  Quite serious, unchallenged allegations are made against the father.  The legislation provides for priority to be given to safety over the maintenance or enhancement of a meaningful relationship between a child and a parent.  I don’t have any evidence about the children’s views, although Dr B saw quite traumatised children, as did the family consultant at an earlier stage.  The primary considerations warrant the orders that have been made.  There has been quite serious family violence, and in my view, the orders are appropriate on the balance of s 60CC factors.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 10 April 2019.

Date:  9 May 2019