Saadah and Saadah

[2014] FamCA 1189

FAMILY COURT OF AUSTRALIA

SAADAH & SAADAH [2014] FamCA 1189

FAMILY LAW – CHILDREN - Parental responsibility
FAMILY LAW – JURISDICTION – Effects of the adoption of the Child Protection Convention when children not in Australia

Family Law Act 1975 (Cth) s 111CD

APPLICANT: Ms Saadah

RESPONDENT: Mr Saadah

FILE NUMBER: ADC 2510 of 2013

DATE DELIVERED: 22 January 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 22 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Greer

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The paternal grandmother, Ms Saadah, have sole parental responsibility for the children, B born on … 2002, C born on … 2005 and D born on … 2007.

2. The children live with the paternal grandmother.

3. All material produced subpoena which did not become the subject of exhibits will be returned by the court to the persons producing it as soon as possible.

4. Any material produced subpoena which became an exhibit will be returned by the court at the expiration of the appeal period to the person producing it. 

5. Any material produced by a party which became the subject of an exhibit will be returned to the court by the party at the expiration of the appeal period. 

6. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saadah & Saadah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRACANBERRA

FILE NUMBER: ADC 2510  of 2013

Ms Saadah

Applicant

And

Mr Saadah

Respondent

REASONS FOR JUDGMENT

1. In this matter, I am satisfied that I have jurisdiction to make the orders that I am now seeking on the basis of the assurance from Mr Greer, who represents the applicant grandmother in these matters, that the children are now in Australia and, accordingly, that I have jurisdiction pursuant to section 111CD of the Family Law Act 1975 (Cth) (the Act). 

2. This is a somewhat unusual matter in that the issue of the suitability of the children’s grandmother having parental responsibility and that they live with her has not been a matter that has, at any point, been in issue.  The question of jurisdiction has been a somewhat troubled one because of this country’s adoption of the Child Protection Convention which introduced a number of amendments to the Act which, in turn, at least on one particular construction, required that the children be in Australia before I could make an order in favour of, in this case, the children’s grandmother. 

3. I do not propose to review in any detail the history of the children, except to say that they had, and I am satisfied that they were, nominated as refugees by the UNHCR as a consequence of their departure initially from Country E, then to Country F and finally to Country G. The precise provenance of their travels, however, is not a matter of concern.  Regrettably, it appears that neither parent of the children is likely to be alive, although that is not entirely clear.  In any event, neither parent is available and the children were, and have been until they came to Australia, living with their aunt, another child of the current applicant. 

4. The applicant herself came to Australia as a refugee and is living in Adelaide and is ready, willing and able to care for these three children who are, for all real purposes, orphans.  The difficulties associated with their obtaining an appropriate visa, which appeared to require an order that their be parental responsibility vested in their grandmother at a time when this court did not appear to have jurisdiction, have fortunately been resolved and I express my gratitude to the Department of Immigration for the way in which they have found a solution to what is a very serious human problem.

5. So far as the application itself is concerned, I have indicated to Mr Greer, who represents the grandmother, that I will make the orders that he has been seeking which would give her sole parental responsibility and direct that the children live with her.  I say briefly, by reference to the terms of the Act, that my primary consideration must be the best interests of the children and, in this regard, I have no doubt that the orders that I have indicated I will make will satisfy that criterion. 

6. There are a number of considerations I am obliged to take into account in determining what is in the children’s best interests. The primary of these is that they should be protected from physical or psychological harm, or being exposed to abuse, neglect, or family violence.  Family violence is not in issue in this matter, but the protection of these children from the horrific situation in which they found themselves, through no fault of their own, is such that it would provide a primacy to making the orders that are being sought even if there were no other considerations to be taken into account. 

7. I do not have an understanding at this point of the views expressed by the children, but I am satisfied that in the circumstances, the appropriate orders are that they should live with their grandmother. I am further satisfied that they will find that situation not only tolerable, but important for their welfare and for their well-being.  Sadly, many of the matters that I am ordinarily to take into account relate to the relationship of the children with their parents and these are matters that are not able to be carried out in relation to these children.  I am satisfied, however, that, for all practical purposes, the relationship of the children with their grandmother is such as would enhance and advance their best interests.  I am satisfied that she will provide for them a stable home and a haven from the problems that have beset them in the past and will enable them to have such communication with, and such relationship with, the other members of their extended family as is possible given the physical circumstances of these children. 

8. I am satisfied as to the grandmother’s capacity to look after the children and I am satisfied that the arrangements that she proposes in general for their welfare, education and development are satisfactory.  I have no doubt that the appropriate orders I should make in the children’s best interests are as follows.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 22 January 2014.

Associate:

Date:  14 March 2014