Shahidi & Beiranvand

Case [2022] FedCFamC1F 862

Federal Circuit and Family Court of Australia

(DIVISION 1)

Shahidi & Beiranvand [2022] FedCFamC1F 862

File number: PAC 1510 of 2019
Judgment of: BRASCH J
Date of judgment: 28 October 2022
Catchwords: FAMILY LAW– PARENTING – Where father lives in a Middle Eastern country and never met the child – Where father proposed a 4:3 arrangement with the child should he come to Australia -  Where father made numerous unsuccessful complaints about mother to the ATO, Home Affairs, Immigration, the Health Complaints Tribunal, a Professional Healthcare Board, the District Court, the Supreme Court, and her employers – Where the father said the mother is to be jailed for 10 years – Where the father sought “joint custody” and the child live with the mother whilst he is overseas  – Where the father sought a psychiatric report about the mother – Where the father has secured an overseas passport for the child in a different name - Where the father wants the child’s last name changed to his - Where mother and ICL propose the child spend no time with the father – Where personal protection orders sought – Where Airport Watchlist orders are sought or resisted – Where child’s birth certificate to be amended  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(a)-(m), 65D(1), 61DA, 65DAA(1) and (2), 65DAB, 68B, 68LA(2)-(7), 102NA
Cases cited:

Cotton & Cotton (1983) FLC 91-330

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Lloyd & Lloyd and Child Representative (2000) FLC 93-045

Loddington & Derringford (No 2) [2008] FamCA 925

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Tinley and Colton [2020] FamCA 1015

Whisprun Pty Ltd v Dixon [2003] 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 180
Date of last submissions: 24 October 2022
Date of hearing: 7 and 10 October 2022
Place: Parramatta
Counsel for the Applicant: Mr Kaliminos for the cross-examination of the mother on 7 October 2022
The Applicant: Litigant in person
Solicitor for the Respondent: Justice Family Lawyers Sydney
Counsel for the Independent Children's Lawyer: Mr Braine
Solicitor for the Independent Children's Lawyer: Ark Law Lawyers

ORDERS

PAC 1510 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SHAHIDI
Applicant
AND:

MS BEIRANVAND
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

28 OCTOBER 2022

THE COURT ORDERS THAT:

1.All previous orders are discharged.

2.The mother shall have sole parental responsibility for the child, X, born 2017 (hereinafter “the child”).

Live with

3.The child shall live with the mother.

Time with

4.The child spend no time with the father.

Birth Certificate

5.The:

(a)Father shall do all things necessary to seek that the child’s Australian…

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AGLC
Shahidi & Beiranvand [2022] FedCFamC1F 862
Case
[2022] FedCFamC1F 862
Decision Date

CaseChat Overview and Summary

Shahidi & Beiranvand involves a dispute between the father and mother over the care and custody of their child. The father has been in Country A since late 2019, and despite an interim consent order being made on 4 November 2019 for the father to have supervised visitation with the child, the child has not met the father as per the order. The father has been vocal about his belief that the mother has committed a crime by hiding the child's birth during their divorce proceedings in Country A. The court was required to decide on the best interests of the child in light of the primary and additional considerations under s 60CC of the Family Law Act 1975.

The court held that the primary consideration of protecting the child from harm from the father's preoccupation with the mother's alleged criminality outweighed the benefit of the father's involvement in the child's life. The court was not convinced by the father's evidence regarding the mother's alleged criminality and found his fixation on the matter to be a source of harm to the child. The court also found that the child had no relationship with the father or paternal family, and that the father's desire to isolate the mother and child from all family for two years was not in the best interests of the child. The court found that the mother was well aware of the need to explain the father's absence to the child in an appropriate manner and had plans to seek advice from a psychologist or child specialist on how to do so.

The court made an order that the child live with the mother and that the father have supervised visitation with the child. The court also made an order that the mother and child not be required to inform the father of their whereabouts or movements, and that the father not be entitled to information about the child's schooling or medical history. The court further made an order that the father pay child support to the mother.

Orders

Orders of the court

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Background

Background to the litigation

The child has not met the father as said, despite an interim consent order being made on 4 November 2019 for the father to spend two hours on each Saturday, supervised, with the child. The father has been, as I said, in Country A since late 2019. BACKGROUND In 2008, the parents married in Country A. They relocated to Australia in 2010. During the same year, the father commenced tertiary studies in Australia but ceased tuition after one semester. He had a sporadic work history after that. In mid-2012, the mother commenced working as a registered health professional in Australia. In early 2014, the mother said the father attended upon D Medical Centre and obtained a letter, which acknowledged that the father was diagnosed with a mental illness. In cross-examination, the father accepted the letter existed, but disputed the diagnosis because it was made by a General Practitioner who was a friend of the mother. On 28 June 2017, the parties separated. The police attended the matrimonial property. The father was charged with assault and arrested. The charges were subsequently dismissed, but an ADVO was in place. In late 2017, the child was born. Also in late 2017 the father returned to Country A. The mother said he returned prior to the child’s birth; the father said it was after. I do no need to decide when he returned home, because it is common ground the father did not see the child then, irrespective of when he left Australia. In early 2018, a final ADVO was made in the father’s absence for the protection of the mother. When the father returned to Australia in mid-2018 it seemed he appealed this order. If so, that was unsuccessful. He also applied for two private ADVOs against the mother and the maternal grandmother, one each I should say. He later withdrew the one against the mother The application against the maternal grandmother was dismissed in 2019. On 13 August 2018, the father commenced property proceedings. They were finalised on 16 January 2019. In late 2018, a divorce order was made by the Family Court of City E, in Country A (Father’s affidavit filed 30 August 2022, p.57-59). The father maintained at the time of the trial before me that the “mother committed offense by hiding the child’s birth in her divorce court in [City E] family court.” He went to the trouble of securing an expert opinion about this; see father’s affidavit filed 30 August 2022, p.45 and following. However, at the time of the application for divorce the mother very clearly told the court that she was pregnant; it is recorded in the translated court document (Father’s affidavit filed 30 August 2022, p.53-55, point 3). I accept the mother’s evidence that once she applied for the divorce she was not asked by the court for any further information. By the time the court made the divorce order, the mother had just given birth to the child. The father however has been and continues to be unrelenting in his pursuit of the mother’s apparent criminality about the mother “hiding” that she had the child. I have no evidence before me that she was required to inform the court of the actual birth. I also note that having a child is often a consequence of being pregnant - a fact the mother told the court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Of the two primary considerations, the balance very firmly swings in favour of protecting the child from the harms which are present from the father’s voluble and vociferous preoccupation with the mother’s apparent criminality and plans to tell the child at some point. section 60CC(3) - ADDITIONAL CONSIDERATIONS The court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine the child's best interests. I set these out in turn below.(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; The child has never met the father. I was impressed by the mother’s evidence that once the outcome of this matter was known, she would take advice from a psychologist or child specialist on how to broach the topic of the father with the child. The mother was well alert that when the child starts school next year, he will discover most children have fathers and will likely be curious about his own. I will not make an order that the mother attend a specialist. The mother spoke about this and I am left with no doubt that she will seek advice on how to explain the fact of the father to the child in an appropriate and child focussed way. There are no wishes or views for me to take account of under this subsection.(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); The child’s relationship with his mother was described by the Family Report Writer as:It appears that [X] has a close and affectionate relationship with [Ms Beiranvand] and no concerns about his development were apparent.(Family Report dated 27 January 2021, paragraph 72) I have no reason to doubt that. Indeed, even the father proposed the child live with the mother whilst he remained in Country A, then live more with her should he come to Australia. Conversely, the child has no relationship with his father. The child also has no relationship with the paternal family. Indeed, the father is fervent in his desire that the child not leave Australia for two years, which means he (the child) could not travel to see the paternal family. Equally, a prohibition on all travel also meant the child and mother could not (on the father’s case) travel to say Country H where the mother has some family, or meet her Country A family at some halfway location. The father’s case is one, which for the following two years, he would ask that the mother and child be isolated away from all family where travel overseas by the mother and child would be required. I do not know the quality or strength of the child’s relationship with the maternal grandmother, who had visited Australia once or twice previously. I accept the mother’s evidence that the child will experience the maternal grandmother should she visit Australia again. I say more about the allegations made by the father against the maternal grandmother later. (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and