RAZAK & LARDNER - [2018] FamCA 941

FAMILY COURT OF AUSTRALIA

RAZAK & LARDNER

[2018] FamCA 941

FAMILY LAW – CHILDREN – Parenting – Where the mother makes application for herself to be placed on the Airport Watchlist – Where mother makes application for the child to be placed on the Airport Watchlist and that she and the father be restrained from taking or causing the child to be taken from Australia – Where the father and paternal grandmother are charged with serious trafficking offences relating to their forced removal of the mother and child from Australia unlawfully – Where appropriate to make the orders sought.

Family Law Act 1975 (Cth) s 68B

APPLICANT:

Ms Razak

RESPONDENT:

Mr Lardner

INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne

FILE NUMBER:

PAC

131

2018

DATE DELIVERED:

16 November 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lawrence

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW Domestic Violence Unit

SOLICITOR FOR THE RESPONDENT:

Mr Hamka of King and York Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne of Reid Family Lawyers

Orders Made On 22 October 2018

Pending further order, the father MR LARDNER born … 1990 and his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the mother (MS RAZAK born … 1989) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the mother’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the mother’s name on the Watchlist until the Court orders its removal.
Pending further order, each party, MS RAZAK BORN … 1989 and MR LARDNER born … 1990 and their servants and/or agents be and are hereby restrained by 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 child, X born … 2017 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

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 Razak & Lardner 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 PARRAMATTA

FILE NUMBER: PAC 131 of 2018

Ms Razak

Applicant

And

Mr Lardner

Respondent

REASONS FOR JUDGMENT

These proceedings have come before this Court in unusual and concerning circumstances.
The applicant father filed in the Federal Circuit Court of Australia an application initiating proceedings on 15 January 2018.
In that application he sought parenting orders in relation to the parties’ child, that child being now almost two years of age. The father, in summary, sought the following orders:
a)that the father and mother have equal shared parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend time with the father effectively in a shared care arrangement;
d)various other specific issues orders.
Concerningly, having regard to the matters set out below, the father on 15 March 2018 made an application for orders without notice to the mother that an order issue to Centrelink requiring that Department to reveal such information known to it that may disclose the whereabouts of the mother and/or the child. Such order was made.
The mother was not served with the application seeking those orders nor did she have any notice of such application.
A further application was made for similar orders on 3 May 2018 and orders in like terms were again made.
On 25 June 2018 the father’s Initiating Application for orders was again before the Federal Circuit Court of Australia and upon the court noting that the father (and the paternal grandmother) had been charged with serious people trafficking offences relating to the mother and child the proceedings were transferred to this Court.
On 2 August 2018 an Independent Children’s Lawyer was appointed to represent the subject child.
On 2 August 2018 the respondent mother filed a Response to the father’s application.
In that Response the mother sought orders that, in summary, were:
a)that the mother have sole parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend no time with and have no communication with the father;
d)that the father be restrained by injunction from approaching or contacting the mother and/or child, assaulting, threatening harassing, stalking or otherwise intimidating the mother and/or the child, attempting to locate the mother and/or the child and from contacting any day care, preschool or school attended by the child and attempting to obtain information about the child or attending at any other function or event that the child may attend;
e)that the mother be permitted to change the child’s name;
f)that the mother and father be restrained from removing or attempting or causing the removal of the child from the Commonwealth of Australia.
In support of the orders sought by her the mother relied upon her affidavit filed 2 August 2018.
On 22 October 2018 on the application of the mother the Court made the following orders:
(1)Pending further order, the father [MR LARDNER] born … 1990 and his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the mother ([MS RAZAK] born … 1989) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the mother’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the mother’s name on the Watchlist until the Court orders its removal.
(2)Pending further order, each party, [MS RAZAK] born … 1989 and [MR LARDNER] born … 1990 and their servants and/or agents be and are hereby restrained by 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 child, [X] born … 2017 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
IT IS FURTHER ORDERED THAT
(3)Judgment is reserved to a date to be fixed.
(4)The proceedings are adjourned for further hearing case management to 10.00am on Tuesday, 22 January 2019.
(5)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
(6)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(7)The attendance of the Applicant mother on the adjourned date is excused provided she is legally represented.
THE COURT NOTES THAT
(8)Any interim application as to parenting by the father is to be made by Application in a Case supported by appropriate affidavit evidence including a full psychiatric assessment of the Respondent father by his treating practitioner.
The following are the Court’s reasons for those orders.

Context

The mother was born in India and is 29 years of age. The mother is a permanent resident of Australia and presently in receipt of Centrelink benefits.
The respondent husband, the father of the child is 28 years of age.
The parties married in 2014 in a civil ceremony in India. A subsequent religious ceremony was conducted in 2015, following which the mother joined the father in Australia in mid-May 2015.
The mother asserts that she was subjected to significant family violence during her relationship with the father and that that violence continued following separation. The violence inflicted by the father on the mother included non-consensual sex and physical assaults including assaults while the mother was pregnant with the parties’ child.
The mother returned to India in October 2016 whilst she was pregnant expecting the parties’ child. She attended her brother’s wedding. The mother returned to Australia in early December 2016.
Subsequent to her return to Australia the mother was again subjected to abuse, threats and significant physical violence at the hands of the father.
The parties’ child was born in 2017.
Within a day or two of the child’s birth the paternal grandmother arrived in Australia. The paternal grandfather was refused a visa. From the time of her arrival the paternal grandmother was abusive and belittling to the mother accusing the mother of “freeloading” and telling the mother that “I will see to it that you are divorced and sent back to India”. The paternal grandmother did nothing to assist the mother and the mother’s care of the newborn child. On several occasions the paternal grandmother physically assaulted the mother.
The mother sought assistance from her own family in India and it was suggested that she return to India for mediation in relation to her relationship with the father and his violence towards her. The mother had no desire to return to India where she would not be protected by the local police.
In early March 2017 the mother was taken to a local pharmacy by the father and the paternal grandmother. She was required to sign a form, that she did not understand, in the presence of the pharmacist. A short time later an Indian passport for the child arrived at the parties’ home. The mother commenced to be concerned that the father was seeking to have her and the child returned to India.
On 20 March 2017 the father told the mother “I have a ticket here for India, so you should start packing”. The mother made it quite clear to the father and the paternal grandmother that she was not prepared to return to India. The father became enraged and she heard him say “how dare she not listen to us, how dare she, I am going to kill her!” With that the father came into the mother’s bedroom, attempted to remove the child from her and said “I am going to teach her a lesson”. He then commenced to slap the mother with an open hand to her face and then began punching her face her chest and shoulders. This, while the mother was holding the child.
The paternal grandmother pulled the father off the mother saying “What are you doing, if you injure her too badly it will be a police case”.
Again the father and the paternal grandmother informed the mother that she was to return to India. Fearful of being assaulted further the mother told the father that she had packed. The mother took photos of her injuries on her mobile phone that was then taken off her by the father.
The next day the father was not at work and kept asking the mother whether she had packed. He said “if you don’t go back I’m going to kill you!”
The mother dialled 000 but was interrupted by the father. She could hear a voice on the phone and in fear she hung up. The father entered the bedroom saying to her “if you’re not packed by the time I get back from the shops I will kill you”. The father left for a short time and the mother again dialled 000 and whilst talking to the telephonist the police arrived at the property as a consequence of the mother’s first phone call.
The mother informed the police as to what had taken place and they observed her injuries and saw the photos of her injuries on her phone. The father returned to the home and told the mother in Hindi “if you tell the police anything or give them a statement I will kill you and your family in India”. The father repeated this threat to the mother in Hindi on several occasions whilst the police were present.
The police took the father and the paternal grandmother to the police station. A short time later they both returned to the home. Unbeknown to the mother an Apprehended Domestic Violence Order (“ADVO”) was made on 23 March 2017 for her protection for a period of 12 months expiring 22 March 2018.
Immediately the issue of the mother going to India arose again. The father and the paternal grandmother took the mother to the father’s car. The mother was carrying the child.
The father and paternal grandmother took the mother and child into the international terminal at Sydney airport. The father had passports and tickets. He told the mother that he would follow her to India the next day. The father checked in the mother, the child and the paternal grandmother and walked them to the departure gates. The mother again argued with the father saying she did not wish to go. She was told “if you don’t go, you know what I can do”.
The mother, feeling she had no other option, went through immigration with the child and the paternal grandmother. Immediately through immigration the paternal grandmother removed the mother’s passport from her.
On landing in India the paternal grandmother took the mother and child to the paternal family’s home. Promptly the mother was told that she was not welcome and she managed to leave that home with the child. Subsequently she asked for the child’s passport to be returned to her and was told by the paternal grandfather that he had ripped it up and that the child was not leaving India.
Subsequently, the mother was able to ascertain that her Australian Visa was still current and she was able to return to Australia herself which she did on 20 May 2017. She was unable to travel with the child, then only four months of age, until she could obtain a new travel document for the child. The child remained with the maternal family in India.
On arrival in Australia the mother went to Auburn police station and was informed that there were orders in place protecting her from the father. Yet she needed to attend at the father’s home to obtain documents to help her get a new travel document for the child. The police assisted the mother in obtaining emergency accommodation.
On 30 May 2017 the mother met with Federal Police officers and accommodation was arranged for her by the Australian Red Cross.
On 8 June 2017 the mother was informed that members of the paternal family had attended at her parents’ home and sought to remove the child from the maternal family. The mother was subsequently able to obtain an emergency travel document for the child and was able to procure the child’s return to her care in Australia.
The father was subsequently charged with breaches of the ADVO by reason of his conduct subsequent to the order. He was convicted of such breach and is presently subject to a good behaviour bond for a period of two years with the ADVO being extended for a further period. His good behaviour bond is subject to ongoing psychiatric assessment and treatment. It is not known what engagement the father has had with any appropriate mental health professional.
The father and the paternal grandmother have since been charged with serious offences by reason of their conduct in removing the mother against her will from Australia. Both the father and paternal grandmother are at liberty on bail with bail conditions protective of the mother and child.
The maternal grandmother is currently visiting from India and is assisting the mother with the care of the child. The mother presently resides in a security complex with her whereabouts unknown to the father.
The mother has, quite properly, concerns for her physical safety at the hands of the father and for the safety of her child. She holds ongoing concerns that the father and/or the paternal grandmother may again seek to remove her and the child from Australia against her will.
Section 68B of the Family Law Act 1975 relevantly provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
It is readily apparent, in the circumstances discussed above, that the orders sought by the mother relate to the protection of herself and the child. It is also readily apparent that it is just that those orders be made pending further order.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 November 2018.

Associate:

Date: 16 November 2018