Nevsky and Scott
[2002] FamCA 860
•10 October 2002
[2002] FamCA 860
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT SYDNEY FILE NO: SY5281 OF 2002
| BETWEEN | “NEVSKY Alexandrine”* [Applicant mother] |
| AND | “SCOTT Damien”* [Respondent father] |
| AND | THE SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS [2nd Respondent] |
| Date of Hearing: | Tuesday 8 October 2002 |
| Date of Judgment & Orders: | Thursday 10 October 2002 |
JUDGMENT
OF THE
HONOURABLE JUSTICE CHISHOLM
| APPEARANCES: | Mr Killalea of counsel, instructed by Mr Alex Tees [of AAT Legal, Suite 4, 301A Castlereagh Street, Sydney NSW 2000] appeared on behalf of the applicant mother. |
| Ms C. Ross, solicitor [of Marsdens Solicitors, PO Box 3201 Parramatta, NSW 2124, DX 5253 Parramatta] appeared on behalf of the respondent father. | |
| Mr Williams QC instructed by Ms Dale Watson [Australian Government Solicitor, 133 Castlereagh St, Sydney, DX 444 Sydney] appeared on behalf of the 2nd Respondent, The Secretary, Department of Immigration & Multicultural & Indigenous Affairs. |
*In this edited version the names of the parties have been changed to avoid disclosure of their identities.
Nevsky v Scott and The Secretary, Department of Immigration & Multicultural & Indigenous Affairs* SY5281 OF 2002
Coram: Chisholm J.
Date of Hearing: Tuesday 8 October 2002
Date of Judgment: Thursday 10 October 2002
*The names of the parties have been changed to avoid disclosure of their identities.
Catchwords: INJUNCTIONS – children - immigration law - whether Family Court can restrain officers of Department of Immigration etc from removing mother from Australia under provisions of Migration Act 1958 – under Migration Act mother to be removed “as soon as reasonably practicable” - whether her removal is “reasonably practicable” where her 9 month old baby is in Australia having contact with mother in detention centre - whether the “paramount consideration” principle is relevant to this question, either as a result of s 65E of the Family Law Act 1975 (Cth) or of the Convention on the Rights of the Child - Family Law Act 1975 (Cth) s 68B.
PARENTING PROCEEDINGS – whether order restraining immigration officers from removing a mother of a baby under Migration Act s 198(6) is a parenting order, or an injunction - Family Law Act 1975 (Cth) s 64B, 68B.
A mother fled from Russia to Australia, arriving under a false passport. While in Australia she had a child, aged 9 months at the time of the hearing. She was placed in a detention centre. She applied for a protection visa, but this was refused. She appealed, unsuccessfully, to the Refugee Tribunal and then to the Federal Court. She then applied unsuccessfully for the Minister to exercise discretion in her favour. At the time of the hearing, she was an illegal non-citizen, and, by virtue of the Migration Act s 198(6), officers of the Department of Immigration “must remove [her] as soon as reasonably practicable”. The child, “Mark”, was living with the father, who was bringing him to the detention centre three times a week to have contact with the mother.
The mother filed an application seeking final and interim orders. She sought an interim order restraining the second respondent (the Secretary, Department of Immigration and Multicultural and Indigenous Affairs) from removing her from Australia (“the restraining order”).
The mother also sought interim orders that the child live with her in the centre for specified overnight periods each week. The father, who was the first respondent, sought orders that Mark live with him, and have day time contact with the mother at the detention centre three days each week.
Held
Per Chisholm J, dismissing the application for a restraining order against the second respondent and making orders for daytime contact:-
The restraining order was not a residence order or a contact order under s 64B of the Act, but was an injunction under s 68B.
The “paramount consideration” principle in s 65E therefore does not expressly apply to the restraining order, and while a finding that the order would promote the child’s interests may be a necessary condition for the restraining order, it is not a sufficient condition. While the best interests of the child may be of the greatest importance, they are not, as a matter of law, the paramount consideration in granting injunctions under s 68B of the Act.
If the Court’s discretion were at large, it should not be assumed that it would necessarily give overwhelming weight to the interest of the child and disregard the orderly operation of immigration law. However it was not necessary to express a final view about this, and for the purposes of the argument the court assumed, in the mother’s favour, that the paramountcy principle applied to the restraining order.
The court had no power under s 68B to restrain immigration officers from performing mandatory duties cast on them by the provisions of s 198 of the Migration Act 1958. Ascot Investments P/L v Harper (1981) 148 CLR 337, 354, Gibbs J; Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516, applied.
The words in s 198 of the Migration Act have their ordinary meaning. It is not a correct interpretation of s 198(6) to state that where the removal of a parent would be contrary to the best interests of a child in Australia, such a removal is not “reasonably practicable” within the meaning of that section.
The mother’s argument, if accepted, would be equally applicable to final orders as to interim orders.
The interpretation of “reasonably practicable” proposed on behalf of the mother would have a wide application. It would significantly undermine the operation of the Migration Act 1958, and would be contrary to the approach of the courts in report and unreported authorities.
Re Mohamed Arif; An Infant (1968) Ch 643, Re F; A Minor (1990) Fam 125, Re A; A Minor (1992) 1 Fam Law R 427, Re K and S (Minors) (Wardship: Immigration) [1992] 1 FLR 432 , and R v Secretary of State for Home Department Ex Parte T [1995] 1 FLR 293; Bakhtiari & Anor v MIMIA (Family Court of Australia, unreported, No. AD3433/02, Dawe J, 9 October 2002), followed.
In the absence of any difficulties such as lack of travel documents or transport, it could not be said that the removal of the mother was not “reasonably practicable”.
It did not appear that there was any ambiguity in the term “reasonably practicable” contained in s 198(6) of the Migration Act. If there were, it does not follow that it be resolved by reference to s 65E of the Family Law Act rather than by reference to the Migration Act as a whole. Similarly, it would only be appropriate to turn the Convention on the Rights of the Child to aid in the interpretation of s 198(6) if the section were ambiguous when read in light of the Migration Act as a whole. The Migration Act, as a whole, tends to negate any ambiguity that section s 198(6) may have when taken out of context.
10. The best interests of the child would be served by making interim parenting orders that maintained existing arrangements, by which he would continue to have day time contact with the mother at the detention centre.
In the Marriage of C (1998) 22 Fam LR 776 (FC), applied.
INTRODUCTION
Mark (not his real name) is aged nine months. He is currently living with his father. His mother is currently detained in Villawood Detention Centre. The father takes him to visit her regularly there.
This case raises two distinct but related issues. The first is whether the Court can or should make an order preventing immigration authorities from removing the mother from Australia. The mother seeks such an order. I will, for convenience, refer to it as the "restraining order". It is opposed by the Minister. Resolving this question involves consideration of the relationship between family law and immigration law or, more specifically, the Family Law Act 1975 and the Migration Act 1958.
There is a technical question whether the Secretary of the Department should be added as a Respondent or substituted for the Minister as a Respondent. Nothing of substance turns on this and I will invite submissions on this formal matter after delivering the judgment.
The second issue is what parenting orders by way of an interim nature should be made relating to the Mark.
THE RESTRAINING ORDER
Background facts
For the purpose of dealing with the restraining order issue, the facts may be stated very briefly. The mother is from Russia. She has described frightening and terrible events in Vladivostok. She says she witnessed a murder in a nightclub there and subsequently was raped on a number of occasions by the casino security guards and by the local police. She says that she fled, fearing for her life, and left Russia on a false passport, arriving in Australia in 1997.
In Australia she had a relationship with the father, who is a party to these proceedings, and she gave birth to Mark, the child who is the subject of these proceedings.
She was, at a later time, detained as a prohibited non-citizen under the Migration Act 1958. In April 1999, she applied for a protection visa on the basis that she was a refugee. That was refused. She sought a review of the decision; but the Refugee Tribunal refused her application and confirmed the decision not to grant her a protection visa. The reasons of the Tribunal are in evidence (Exhibit A). I am told that the mother then appealed unsuccessfully to the Federal Court and then applied, also unsuccessfully, to the Minister to exercise his discretion in her favour.
There are no proceedings on foot in relation to her status under the Migration Act. I take note of the mother's evidence that she is, or was at the time of her affidavit, contemplating an application to the High Court. But no reliance was placed on this matter in the submissions on her behalf and, as I understand it, no such application has been made at this time.
At the present time, the mother is in the Villawood Detention Centre and her status under the Migration Act is that she should be removed from Australia as soon as reasonably practicable.
The mother is the Applicant in these proceedings. She seeks a number of orders which are set out in the handwritten document that became Exhibit M4. Orders 2, 3 and 6 sought by her relate to residence and contact and are unquestionably parenting orders dealing with those matters. Order 1 is in the following terms: “That the Applicant not be removed from Australia by the Respondents or their agents pending determination of the substantive proceedings.” For clarity, I would rephrase this as follows:
That pending determination of the substantive proceedings, the Respondents or their agents be restrained from removing the Applicant from Australia.
What is the nature of the restraining order?
The mother’s counsel Mr Killalea submitted that the restraining order she sought was a “parenting order” under s 64B(1)(a) or (b). That section effectively defines a parenting order, and says in sub-s (2):
A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) contact between a child and another person or other persons…
Mr Killalea submitted that the restraining order was a parenting order either because it was a “residence” order or a “contact order”. He submitted in effect that the question of the mother's removal from Australia was relevant both to residence and contact, and that the paramount consideration principle in s 65E should apply.
In my view, the last point begs the question; one must first consider the question whether the order is a parenting order before determining what principles apply to it.
Whether an order is a parenting order may be ultimately a matter of degree. There is, no doubt, a connection between the child's residence and contact and the mother's possible removal from Australia. However, in my view the connection is not so close as to make the order properly characterised as a “residence order” or a “contact order”. As a matter of ordinary language, I would not say that the order deals with residence or contact; instead, it deals with the mother's removal or non-removal from Australia by immigration authorities.
Does the paramountcy principle apply?
In my view, therefore, an order in those terms would not be a parenting order but an injunction under s 68B of the Act. Because it is an injunction, the paramount consideration does not expressly apply to it. Section 65E, which contains that principle, applies only to the making of parenting orders. A finding that the restraining order would promote the child's best interest may well be a necessary condition for an injunction under s 68B, but it is not a sufficient condition. While the matter has not been argued in this case, and I would leave it open for further consideration, my present view is that the child's best interests, while it might often be a matter of the greatest importance, is not, as a matter of law, the paramount consideration in granting injunctions under s 68B.[i]
It follows that I have doubts about the starting point of the mother's submission, namely that the restraining order she seeks is governed by the paramountcy principle. If it is not, then the exercise of discretion would be at large, although of course to be exercised having regard to the provisions of the Act. In that exercise of discretion, I do not think it can be taken for granted that the balancing exercise that might be involved would result, necessarily, in the Court giving overwhelming weight to the interest of the child and disregarding the matter of the orderly operation of immigration law. However, the submissions did not really canvass the matter in this way, and it is not necessary or appropriate to express views about it. For the purposes of this judgment I will assume, in the mother's favour, that the paramountcy principle does apply to the restraining order that she seeks.
The mother’s position under immigration law
The mother's position under the immigration law is not in question. It is accepted that she falls within s 198(6) of the Migration Act 1958. This is because, omitting some details and technicalities, she is an unlawful non-citizen and a detainee, and she has made a valid application for a substantive visa, but the granting of a visa has been refused and her application has been finally determined. The result is that by virtue of s 198(6), an officer must remove her “as soon as reasonably practicable”. It follows that at the time of the hearing, officers were required by law to remove the mother from Australia as soon as reasonably practicable.
The Court has no power to restrain immigration officers from performing mandatory duties
Mr Killalea in his submission on behalf of the mother relied on two High Court decisions in relation to the scope of the Court's power to make the restraining order. First, he relied on the second of the following two passages in the judgment of Mason CJ in Re LSH; Ex Parte RTF (1987):[ii]
But in some matters, as, for example, questions relating to the custody of, and access to, a child of a marriage, the making of an order against a third party may be essential to the protection and enforcement of the rights and interests of the parties to a marriage or either of them. As I pointed out in R v Lambert; Ex parte Plummer (1980) 146 CLR 447 at 466; 32 ALR 505 at 519; Fam LR 355 at 637: "It is of the essence of an award of custody, as with the father's right to custody under the old common law, that it may be enforced against strangers to the marriage. Where custody is awarded to one parent, though it is awarded as against the other parent, it is enforceable against others…
It follows that neither as a matter of constitutional power nor as a matter of interpretation of s 114(3) is there any reason for denying to the Family Court power to grant an injunction against a third party by way of ancillary relief for the purpose of protecting and enforcing a right or claim to custody or access under the Family Law Act.
Mr Killalea acknowledged, however, that there is a limit to the orders that can be made against third parties. In this connection he cited a well-known passage from the judgment of Gibbs J in Ascot Investments v Harper:[iii]
The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform….. It would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties in the absence of clear and unambiguous words.
This is an authoritative statement, and it has been expressly applied to the operation of the Family Law Act 1975 in connection with immigration law. In Molisi v Minister for Immigration, Drummond J held that the provisions of s 68B and 114 of the Family Law Act did not confer power on the Court to restrain the immigration officers from performing mandatory duties cast upon them by the provisions of s 189 and 198(5) of the Migration Act.[iv] The relevant words in s 198(5) are the same as those in s 198(6), quoted below. The correctness of this conclusion was not challenged in the submissions before me, and I have no doubt that it is correct.
The argument that it is not “reasonably practicable” for the mother to be removed
Mr Killalea conceded that the Court could not make the restraining order if the order would impose on departmental officers a duty that they would not otherwise be liable to perform. He conceded that an order of this Court compelling them to provide residence or contact for the child in the Villawood Detention Centre would impose such a duty and should not be made. However, he submitted that the restraining order concerned would not impose such a duty and that the Court could and should make it.
On the face of it, the officers are under a duty to remove the mother from Australia, and the restraining order would impermissibly restrain them from performing that duty. Mr Killalea's argument was, however, that at the present time it is not "reasonably practicable" for them to remove the mother. Thus, he submitted they presently have no duty to remove her.
This is the point of contention. Mr Williams submitted that it is reasonably practicable at the present time for the officers to remove the mother. Thus, he submitted, they have a duty to do so and the Court cannot or should not make an order preventing them from what they are required to do by the provisions of the Migration Act. (I should mention that Mr Williams’ submission raises a number of other issues which it is not necessary to consider because, in the end, the submissions focused on the narrow point that I have identified.)
The interpretation of the opening words of s 198(6) involve the words:
must remove [her] as soon as reasonably practicable
The key passages in the mother's written submissions are these:
11. In the context of Australia's obligations under the United Nations Convention on the rights of the child, given effect under the provisions such as s 65E of the Family Law Act 1975, the term "as soon as reasonably practicable" is to be interpreted with respect to what is reasonably practicable from the Applicant's perspective vis-à-vis her role in giving effect to the best interests of the child.
12. An injunction restraining the Secretary from removing the Applicant from Australia pending determination of her extant Application for residency orders relating to the child, is an order consistent with s 65E of Family Law Act and does not restrain the exercise of the Secretary's duty under s 198 of the Migration Act 1958.
I find the quoted words in the submission a little difficult to follow. But I understand the argument to be that in their application to the present circumstances, the relevant words in s 198(6) should be taken as meaning that it would not be reasonably practicable to remove the mother where to do so would be contrary to the best interests of the child. The provisions of s 65E of the Family Law Act and/or the Convention on the Rights of the Child are said to support this interpretation.
The argument, then, boils down to this proposition: that where the removal of a parent under s 198 of the Migration Act would be contrary to the best interests of a child in Australia, such a removal is not “reasonably practicable” within the meaning of that section.
The argument considered
The words in s 198 are ordinary English words, and it was not submitted that they have any other than their ordinary meaning. The Concise Macquarie Dictionary gives the following meaning for the word "impracticable": “not practicable; that cannot be put into practice with the available means”. The word "practicable" is relevantly defined as “capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible.” The relevant sense of the word "reasonably" would appear to be “not exceeding the limit prescribed by reason, not excessive”.
In my view, as a matter of ordinary language, the proposition advanced on behalf of the mother is not a plausible interpretation of the opening words of s 198(6). The matters that would fall within that phrase would no doubt include such things as the lack of necessary travel documents, unavailability of transport, and the like. There is no suggestion that any such difficulties apply in this case. Indeed, the phrasing of the opening words of the sub-section suggest that they are addressed not so much to the question whether the person should be removed, but to the question how soon he or she should be removed.
The removal of a parent in circumstances such as the present could be characterised in many ways. It might be seen as contrary to the child's interests, or sad, or tragic. But there are no practical difficulties in removing the mother. However regrettable it might be from the point of view of the mother or the child, I do not think it can be said that her removal is “not reasonably practicable”. As Mr Williams said, the phrase does not include reference to whether it is desirable for the person to be removed, or invite or allow consideration of discretionary issues.
I have read the immigration authorities to which I was referred. There is no authority directly in point. The mother sought to rely on a passage in Nadn and Nado v The Minister, a decision of Lindgren J.[v] The passage relied on is this:
In relation to the depression ground, no medical evidence was presented and I am not persuaded that the mere reference to depression and treatment for it raises a serious question to be tried as to whether it is reasonably practicable for the Applicant Nadn to be removed.
That is a fragile basis indeed, since the Court was merely indicating that because of lack of evidence it was not necessary to consider the matter. Other cases to which I was referred do not assist the mother's case. It may well be that where removal would endanger the health of the detainee, while that risk exists the person's removal would not be “as soon as reasonably practicable”.[vi]
But there seems no authority in which the interests of a child or any other person's interest have been held to make the removable impracticable. This is not surprising. As Mr Williams pointed out, the thrust of the relevant provisions is emphatically to exclude the weighing up of such matters or to permit or require officials to do so.
Can the paramountcy principle be used to resolve ambiguities in s 198 of the Migration Act?
In his additional written submissions, Mr Killalea said that if there is any doubt about the meaning of the term "reasonably practicable", that ambiguity ought to be resolved in favour of a meaning consonant with s 65E of the Family Law Act for reason of the manifest beneficial nature of that provision.
I think there are two difficulties with this argument. Firstly, I do not think there is any such ambiguity in s 198(6). That is, I do not think that there are two plausible meanings, one of which would be the interpretation advanced by the mother. Secondly, I see no logical reason why, if there were such an ambiguity, it should be resolved by reference to s 65E of the Family Law Act 1975. A much more obvious approach and one that seems more consistent with general principles of statutory interpretation, would be to interpret the phrase in the context of the Migration Act with a view to giving effect to that Act read as a whole.
As for the Convention on the Rights of the Child, it would in my view be appropriate to turn to it as an aid to the construction of s 198 only if there remained an ambiguity when s 198 was considered in the context of the Migration Act. Ordinary principles of construction, in my view, would mean that one must first look at s 198 in the context of the Migration Act. Only if it were ambiguous when read in that context could it possibly be argued that the Convention would provide proper guidance.
However, there was no cogent submission that s 198, when read in its context, was ambiguous in the relevant sense, that is, ambiguous in that the meaning contended for by the mother was a possible interpretation. In these circumstances, I do not think it would be sensible for me to recite provisions of the Migration Act or attempt to summarise it. I will only say that the context of the Migration Act as a whole tends, in my view, to negate any relevant ambiguity that s 198 might be thought to have, when taken out of context.
Conclusions
To summarise, in my view, the words in s 198(6) have their ordinary meaning. Applying that meaning, in my view, it cannot be said that it is not reasonably practicable for the Secretary now to remove the mother from Australia.
The conclusion I have reached on the basis of the ordinary meaning of the words in s 198 is supported by two other considerations. The first is a consideration of the practical implications of the construction the mother urges. There is some suggestion in the submissions for the mother that the argument is specifically about interim proceedings and might not apply at the final hearing. I am not sure that the submissions consistently said this. At one point, I believe that Mr Killalea indicated that he thought that the interpretation would continue to apply at the final hearing.
However, the suggestion, if it was made, that the Court could make the restraining order as an interim order but not as a final order, raises a problem of its own. There is no suggestion that the Minister's position is likely to change. Thus, if there is no power to make the restraining order as a final order, the end result would appear inevitably to be that the mother will be removed from Australia. If so, it would be difficult to see that the Court should make such an order on an interim basis, even if it had power to do so, since the interim order would be essentially futile.
More importantly, I can see no logical reason why the argument, if accepted, would be limited to interim proceedings. If the mother's argument were correct, when the Court came to determine what final parenting orders should be made, it would be equally arguable that removing the mother would be contrary to the child's best interest and therefore, in terms of the section, it would still not be “as soon as reasonably practicable” to do so. If so, on the mother's analysis, the Court could make a final order (whether a parenting order or an order under s 68B) preventing the officers from removing the mother on an indefinite basis, since it would remain contrary to the child's best interests for her to be removed.
That being the case, if the mother's argument were accepted, it would have a wide application to cases where parents or family members of an Australian child are in detention. I would imagine that in most, if not virtually all, cases where a parent of an Australian child is in detention, the child would be better off if the parent were permitted to stay at liberty in Australia. The argument now advanced would consistently prevent immigration officers removing such parents. Indeed, the argument may well have an even wider application. If a grandparent, sibling or other family member were detained, removing the person might also plausibly be said to be contrary to the children's best interest because the Act, especially since the amendments in 1995, expressly recognises children's interests in relationships with family members. It even speaks at one point of children having “a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development”.[vii] Such consequences would significantly undermine the operation of the Migration Act.
This leads me to the second consideration. The construction advanced by the mother would, as Mr Williams puts it in his supplementary submissions, authorise orders which would defeat the clear intention of specific provisions in the Migration Act which provide a detailed code dealing with, relevantly, removal from Australia. I know of no authorities in Australia or elsewhere that would support such an interpretation of the Family Law Act. Certainly, none has been cited.
On the contrary, there is a line of cases in England from the 1960s that consistently refuse to allow applications for orders in proceedings governed by the paramount consideration principle to defeat the operation of immigration laws.[viii] It is unnecessary to examine the detail of those authorities; they are not precisely in point, but the conclusion that I have reached is consistent with them.
Summary
For these reasons, while I feel great sympathy for the mother and the child, I am driven to the conclusion that the law does not permit me to make the order sought by the mother. The mother's submissions depend entirely on a construction that, in the end, I cannot accept as representing the law. Firstly, it is contrary to the ordinary meaning of the words, especially when read in context. Secondly, the construction proposed by the mother would tend to undermine the operation of the Migration Act and would be contrary to the approach of other Courts in the reported and unreported authorities that have considered the operation of family law in relation to persons affected by immigration laws.
THE PARENTING PROCEEDINGS
Introduction
I now turn to the parenting proceedings between the mother and the father. I proceed on the basis of the written affidavit material, consistently with the approach laid down by a number of Full Court authorities, notably Marriage of C (1998).[ix] That authority also summarises the principles that apply. I do not think it necessary to spell out those passages, but I take them into account. It is sufficient to say for the present purposes, that the best interests of the child are the paramount consideration, and the authorities emphasise the importance of preserving a stable situation for the child pending the final hearing.
The father seeks orders that preserve what has been referred to as the "status quo". Those orders would leave the child living with the father pending the final hearing and having daytime contact with the mother at the Centre on the basis of three days a week. They would also, I think, include telephone contact. They would not include overnight contact at the Villawood Centre. The father would be responsible for delivering the child and collecting the child at the end of the contact periods.
The mother seeks orders 2, 3 and 6 of the document that became Exhibit M4. Order 2 is:
If a residency order is granted in respect of the child in favour of the Applicant to the effect that the child reside with the Applicant at Villawood Detention Centre for four days and three nights of each week from 9.00 am on the first day until 5.00 pm on the fourth day, subject only to arrangements for such residence to be agreed between the Respondent Secretary and the Applicant.”
Order 3 is:
In the alternative to Order 2, that a contact order is granted re the child in favour of the Applicant for four days per week commencing 9.00 am and ending at 5.00 pm on each day.
Order 6 deals with the obligation of the father to deliver and pick up the child.
In determining what orders should be made, I have had regard to the principle in s 65E and also to the provisions of s 60B and the relevant factors in s 68F. In the circumstances of this case, however, it is not particularly useful to go through the various matters in s 68F one by one; many of them are irrelevant. For example, the child is too young to have his wishes taken into account. The matters of most importance, I think, are paragraph (b) relating to the child's relationships, paragraph (c) relating to the effect of any changes and any separation, and paragraphs (e) and (h) which refer to the capacity of parents and others to provide for the child and their attitude to their responsibilities.
I note by way of further background facts that Mark has been living with the father since the mother went to the Villawood Centre at about the end of May 2002. The father is unemployed, and he has the care of his two children, born 1994 and 1996, as well as the child in these proceedings.
Discussion
In considering the capacity of each parent to provide for the child, I look first at the father's situation. The most important fact, in my opinion, is that there is no evidence that the child has come to any harm while living with him, since May 2002. In fact, the evidence is to the contrary. There is some suggestion in the mother's affidavit that the father has referred to trouble getting the child to go to sleep, but this is understandable and not in itself a cause for concern. I note in the mother's affidavit, paragraph 16, that she says, “I say that I said on many occasions words to the effect, "You are a good father, but baby Mark needs his mother."”
There are some matters of an adverse nature raised in some of the reports that came into evidence. In particular, there is a report by Marilyn Jones dated 8 October and a report by (I think) Lyn Tripper (the name is a little difficult to read). I do not propose to read those in any detail. However they speak highly of the mother and her commitment to the child and her capacity to care for the child.
The father does not come out so well, and there is some reference to him being aggressive and abusive. However, it may well be that these matters to some extent reflect the fact that at least at some of the periods referred to in those reports, the parties’ relationship had recently broken up or become difficult.
In relation to the mother, as I say, those reports are highly favourable and of course I take that into account. However the father has some concerns about the mother. The first is that she is likely to remain in Villawood. His evidence is to the effect that it is not possible for children to stay there or, at least, that the facilities are inadequate. The mother gives some evidence to the effect that this is not so. I think I can take judicial notice that children do in fact stay in the Villawood Centre. I will assume, therefore, consistently with the mother's evidence, that it is possible for the child to stay there and that there are adequate facilities there.
The second area of the father's concerns relates to the mother's well being and state of mind. He led some evidence that causes me some concern. In paragraph 15 he refers to the mother making repeated telephone calls which the father finds overwhelming and harassing, and crying during these telephone calls. More significantly, in paragraph 26 he also refers to such telephone calls in which he says that the mother is crying and “often yells abuse at me”. Most important of all, he says that about a month after the mother was placed in detention she said words to the effect, "If you don't let me see Mark I am going to kill myself and him". According to the father, shortly after that she telephoned him and said words to the effect, "I'm going to kill myself in here". These matters are denied by the mother and, of course, it is not possible to make a finding on them.
There are some other matters referred to in the mother's affidavit. She says in paragraph 4.10 that her state of health and emotional well being is “in a very parlous state, as is that of baby Mark”. In paragraph 19 she says that the doctors at Westmead Hospital diagnosed her as having a heart problem and she says:
I believe that my heart and my health status generally require further investigation before any further arrangements are made with respect to myself.
Conclusions
This is a very sad case. Because of decisions taken under the Migration Act it is not possible for the child Mark to have what he needs, namely love and care from both parents. Unfortunately, his mother is confined in a detention centre and seems likely to be removed from Australia to Russia. I can understand how much she would like the Court to make an order preventing this. However, despite the vigorous submissions on her behalf, for reasons I have explained it is not possible for the Court to do so.
I must, therefore, consider what interim orders are most likely to benefit Mark in the present circumstances, namely, that the mother is in detention and it seems that she will stay there until she is removed from Australia. That might be soon since there is no evidence of anything other than these proceedings that would prevent it happening.
Firstly, in my view it is clear that in these interim proceedings, no orders should be made that would lead to the child returning to Russia with the mother. The mother's evidence about the reasons that she fears for her life in Russia make this an obvious conclusion and I do not think that the contrary was proposed.
Secondly, it is clearly important for the child to have as much contact as possible while the mother remains in Australia.
Thirdly, I accept Mr Killalea's submission that as a matter of law it is open to the Minister or to the Secretary to detain the mother somewhere other than Villawood. However, there is no evidence that this is likely and I must deal with the present situation.
Overnight contact?
The real parenting issues, in my view, relate to whether Mark should be with the mother overnight at the Centre. In this connection, I have already referred to most of the relevant evidence, but I also take into account the report that became Exhibit M1 by Dr Michael Dudley and Dr Konya Rory. That report is based on an interview and observations made on 20 September 2002. The doctors saw the mother and the child. It is not necessary to describe that report in any detail. It is sufficient to say that it describes a warm and appropriate bond between the child and the mother, and the mother taking appropriate steps to deal with the child, and relax him and care for him. Their interactions, the report says, were “relaxed and positive”.
The doctors say, and in my view this is clearly correct, that ongoing and regular positive contact between the child and his mother is of paramount importance to his appropriate emotional and physical development. The doctors say that the mother appears happier and more relaxed then when she was assessed earlier, and that this is probably attributable to the increased frequency and duration of contact between the mother and the baby. They recommend that the contact should continue.
The doctors also note some "positives" in the environment, in that the mother was housed in a self-contained unit with another mother and baby, which she perceived as supportive. They described the mother's relationship with the child as "thriving". They say that it may be reasonable to increase the frequency of contact on a trial basis. They conclude with the following sentence: “This recommendation should not be construed as an endorsement of the acceptability of children living in immigration detention centres.”
This report, with the other material that I have referred to, raises the question whether it would be likely to be in the child's interest if I were to increase the contact by making provision for overnight contact.
I found this a very difficult matter, but on balance I am not persuaded that it is appropriate to depart from the existing situation. I take into account in this regard the likelihood that the mother will be removed from Australia in the near future. I am also concerned in view of the father's evidence and other evidence about the mother's state of health. The stress of impending removal could trigger some crisis in which the child's safety or health may be at risk.
In all the circumstances, the safest course, and the course most likely to promote Mark's best interest, is to preserve the existing situation, in which he has daytime contact with the mother. I hope this contact will be as frequent as possible but, in my view, it would not be reasonable to order the father to provide Mark for contact more than three times a week. If he is able to do so more frequently, I hope he will. I note that the report by Dr Dudley and Dr Rory did not recommend overnight contact and, in all the circumstances, had they thought that overnight contact would be desirable, I see no reason why they should not have mentioned that in their report.
I have also taken into account the medical situation relating to Mark and his rash, and would propose to deal with that in the orders. As I have indicated, I propose to adjourn briefly to allow the parties an opportunity to consider the precise terms of any orders and also any other matter that might arise from this Judgment. The orders that I am thinking of making at this stage are simple and they are as follows:
(1)That until further order the child live with the father.
(2)That the child have such contact with the mother as the parties may agree and in the absence of other agreement, contact from 9.00 am to 5.00 pm at the Villawood Detention Centre or other place where the mother might be residing, for three days each week unless the father reasonably believes on medical advice that the child is not well enough to have such contact.
(3)That the father cause the child to be delivered at the start of such contact periods and to be collected at the end of such periods.
I certify that the preceding 70 paragraphs are a true copy of the reason for judgment herein of the Honourable Justice Chisholm
Associate
[i]Flanagan v Handcock (2000) 27 Fam LR 618, per Kay and Holden JJ, at paragraph [18].
[ii]Re LSH; Ex Parte RTF (1987) 164 CLR 91. I have included a previous paragraph of the judgment for completeness.
[iii]Ascot Investments P/L v Harper (1981) 148 CLR 337, 354, Gibbs J (as he then was)(emphasis added).
[iv]Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516.
[v]Nadn and Nado v The Minister [2001] FCA 1896.
[vi]I note in this connection that in the case Lee v The Minister [2002] FCA 667, paragraph 12, there was a concession by the Minister that if the Applicant was not medically fit to travel, it could not be said that it was reasonably practicable to remove him.
[vii]Section 60B.
[viii]Re Mohammed Arif; An Infant (1968) Ch 643, Re F; A Minor (1990) Fam 125, Re A; A Minor (1992) 1 FLR 427, Re K and S; Minors (1992) 1 FLR 324, and R v Secretary of State for Home Department Ex Parte T [1995] 1 FLR 293. To the same effect is Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516, to which I have referred, and the very recent decision of Dawe J in this Court in Bakhtiari & Anor v MIMIA (Family Court of Australia, unreported, No. AD3433/02, Dawe J, 9 October 2002).
[ix]In the Marriage of C (1998) 22 Fam LR 776 (FC).
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