Shahidi & Beiranvand
[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
ApplicantAND: MS BEIRANVAND
RespondentINDEPENDENT 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 Birth Certificate be amended to include the Father’s name, at the Father’s sole cost;
(b)Mother shall sign all documents and do all things necessary to give effect to same.
Restraints
6.The Father is restrained, by injunction, pursuant to section 68B of the Family Law Act 1975 (Cth), from:
(a)Attempting to contact the mother or the child by any means whatsoever, including through a third party, other than for the purposes relevant to these proceedings;
(b)Approaching, or coming within 100 metres of any place where the mother or child might reside from time to time;
(c)Approaching or coming within 100 metres of any school or before or after school day care centre which the child might attend or at which any of them is enrolled; and
(d)Approaching or coming within 100 metres of the mother’s place of employment.
Maintaining Contact
7.That the applicant father shall be permitted to send to the child an email message for the child’s birthday and Christmas.
8.The applicant father’s email message shall be provided to the respondent mother’s personal email address and the respondent mother shall ensure that the email message is read to, or read by, the child.
9.Any email correspondence provided by the applicant father to the child shall not denigrate the mother, refer to these proceedings, or otherwise include any content that is not age-appropriate and/or does not reflect the best interests of the child.
10.The mother shall have liberty to review any email prior to it being provided to the child and have liberty to censor any material which is contrary to the purpose of this Order.
11.The respondent mother shall encourage the child to respond by email to the applicant father to thank him for the email message, should the child wish to do so and once it becomes age-appropriate for the child to provide such correspondence.
Travel
12.The name of the child X born 2017 be removed from the Family Law Watchlist.
13.Pursuant to section 65Y(2) of the Act, the respondent mother be permitted to travel internationally with the child.
14.Pursuant to section 11(b) of the Australian Passports Act, the mother shall have liberty to apply for a passport or the renewal of a passport in the name of the child without requiring the applicant father’s signature.
15.Each parent, being Mr Shahidi born 1974 and Ms Beiranvand born 1980, 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 (Cth), from removing or attempting to remove or causing or permitting the removal of the said child, under the name of Y 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 Y 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.
16.The Independent Children’s Lawyer shall be discharged.
THE COURT NOTES THAT:
A.The child’s Australian birth certificate and Australian passport names the child as X, born 2017.
B.The father has secured a Country A birth certificate for the child and in the name of Y, born 2017.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shahidi & Beiranvand has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
I have before me this afternoon Mr McLellan for the mother and Ms Rutkowska who is the ICL. My associate advised me the father was in the waiting room as I came onto the bench, but he has since departed or otherwise been disconnected from the waiting room. I confirm that my associate has called him using the Court’s Teams device three times. I will proceed. If he does re-join, he will be let straight in.
These are my ex tempore reasons. I will now, in circumstances where the father is absent, publish a written copy of these reasons and I reserve the right, of course, to correct for grammar and to make the spoken word more amenable to the written word. These were parenting proceedings that came before me in the course of the Parramatta Rolling List. Submissions closed on Monday and I give my reasons now.
The child is X, born 2017. It is common ground that the child has never met the father. When a consent order was made for the child to spend supervised time with his father in late 2019, the father then returned to Country A in late 2019 and has not been to Australia since.
The applicant father, Mr Shahidi, was born in 1974. He initiated proceedings on 2 April 2019, by filing an Initiating Application for Final Orders in the in the Federal Circuit Court, as it then was. The father currently lives in Country A and did so from late 2017 to May 2018, and as said from late 2019 to the present.
The respondent mother is Ms Beiranvand, born in 1980; she filed a Response to an Initiating Application on 23 May 2019. The mother lives in Australia. She is a qualified and registered health professional.
The matter was transferred from the Federal Circuit Court to the Family Court of Australia, as it then was, on 5 August 2020.
By way of final orders, the father sought orders in his Amended Initiating Application filed on 30 August 2022 that:
(a)The child’s birth certificate be corrected, and the father’s name be added;
(b)The child’s name remain on the Family Law Watchlist;
(c)The child not leave Australia without the father’s consent;
(d)The mother not apply for a passport for the child without the father’s consent;
(e)The child not leave Australia for the next two years except for medical treatment unavailable in Australia;
(f)The father spend time with the child, three days a week following his return to Australia;
(g)The mother not approach the father’s home or employment;
(h)That maternal grandmother not have access to the child;
(i)In each semester the mother report the “child’s residential address, school address and transcript” for the child’s school to the father;
(j)The child’s name be changed from the mother’s last name, to the father’s;
(k)The mother not be allowed to relocate with the child away from Sydney without the father’s consent;
(l)“Joint custody”; and
(m)The mother to provide a report from a qualified psychiatrist or clinical psychologist “for her mental health condition”.
I pause to observe that the father agreed the child ought live with his mother. In the event the father came to Australia, he proposed the child “live more” with the mother, than the father. He proposed a 4:3 arrangement in the mother’s favour per week.
In the mother’s Minute handed up at the end of trial (which became Exhibit 3), the mother sought orders that:
(a)She have sole parental responsibility;
(b)The father do all things necessary to add his name to the child’s birth certificate at his cost;
(c)The child live with the mother
(d)The child spend no time with the father;
(e)An injunction issue restraining the father from contacting the mother or the child and from approaching or coming within 100 meters of where the mother and child live, attend school, or are employed;
(f)The father be permitted to send the child an email on the child’s birthday and Christmas, provided to the mother’s email address, with the mother being granted liberty to review and censor any email prior to it being read by the child;
(g)The child’s name be removed from the Airport Watchlist; and
(h)The mother be permitted to travel with the child without the consent of the father and apply for a passport for the child (or renewal) without requiring the father’s signature.
The Independent Children’s Lawyer (“the ICL”) sought similar orders to the mother, and by the time of written submissions no longer opposed the father’s name being included on the child’s Australian birth certificate. The ICL also sought the traditional order that parties share the costs of the ICL in equal shares. I will not make that order. The hope of securing anything from the father is fanciful. He does not even contribute financially to the child. The mother’s Costs Notice reveals that “given her financial circumstances”, she is paying her lawyers $100 a week. I will not impose a further financial burden on the mother; this will only divert money the mother has otherwise to maintain the child.
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.
The father admitted to making many complaints against the mother with entities such as the Australian Tax Office, the Department of Immigration and her employer. He alleged that the mother had committed forgery in relation to her qualifications and immigration application. None of the complaints were made out. He said there is a current Home Affairs investigation into the mother, although in cross-examination the mother had no knowledge of that.
The ADVO naming the mother as the protected person was extended in early 2019 for an additional 12 months.
On 2 April 2019, the father commenced these parenting proceedings in the Federal Circuit Court, as it was.
On 4 November 2019, interim consent orders were made that the father spend two hours on each Saturday, supervised, with the child. A non-denigration order and an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) were also made.
However, the father returned to Country A in late 2019 and has remained there since.
In late 2019, the F Contact Service cancelled their intake session with the mother due to the father’s departure from Australia. The contact service subsequently closed their file due to several unsuccessful attempts to contact the father.
In early 2020, the father commenced proceedings before the Family Court in City E, in Country A. In his affidavit at paragraph 6, he described this as a “fatherhood approval case at [Country A]”. The translated submission at page 22 of the father’s affidavit looks like a paternity claim. In cross-examination the father said he did this because:
I was freaking out that the mother wants to attempt to bring the child secretly to [Country A] without my knowledge and causing the child to go to the custody of the government…I was afraid for the health of the child…It was only a precaution if the mother wants to get the child out of Australia and into [Country A].
On 24 February 2020, orders were made by consent that the child be permitted to travel with the mother to Country K in early 2020 and that a passport be issued in the child’s name. The mother was required to provide a surety of $100,000 by way of charge over her real property in Australia. The mother ultimately did not travel with the child, as Covid intervened.
Various interim orders were made along the way in this parenting matter, including for example in April 2020 an order was made for the mother to file an affidavit setting out why the father’s name should not be on the child’s birth certificate. In June 2020, the father was to file the Country A birth certificate he had obtained for the child, and the mother was to file information about the circumstances of the child’s birth.
It was the mother’s case that she was also the subject of an arrest warrant in Country A after failing to appear before the City E Family Court. These were the proceedings, as best I can understand, that the father had initiated.
In early 2020, the mother alleged the maternal grandmother received court documents in Country A, which required the mother to attend court based on allegations that the mother had committed an offence through the course of family law proceedings in Australia.
On 27 January 2021, the Family Report of Ms G was released. The Report recommended:
…that [Ms Beiranvand] hold sole parental responsibility for [X].
I pause to note that the Family Report Writer kept referring to [X] as [Z], I understand that to be an error. The recommendations continued:
It is recommended that [X] live with [Ms Beiranvand].
It is recommended that, if the Court holds concerns regarding possible risk to [X] from [Mr Shahidi] through mental health or other difficulties, that [X] spend no time with him.
If the Court does not hold such concerns, it is recommended that [X] spend time with [Mr Shahidi] for two hours each fortnight at a supportive location such as a Contact Centre.
(Family Report dated 27 January 2021, paragraphs 85-88)
On 26 April 2021, the father was ordered to file and serve a mental health assessment by a qualified psychologist or psychiatrist registered in Australia prior to any request for relisting. He did not.
In mid-2021, orders were made in the District Court proceedings that the matter be adjourned for six months and only be permitted to proceed pending the father’s payment of $40,000 as security for costs. In late 2021 the District Court proceedings with respect to his claim of malicious prosecution by the mother were dismissed, due to father’s failure to comply with the payment of security for costs (Father’s affidavit filed 30 August 2022, paragraph 24). In early 2022 the father appealed that decision. The appeal was dismissed in mid-2022.
In late 2021, a Country A birth certificate issued for the child, but in the name of “[Y]” (Father’s affidavit filed 30 August 2022, p.40). That name was instead of X, which is how the child’s name is registered in Australia. The father explained in cross-examination that X sounded foreign and that could be problematic with Country A authorities.
The parenting matter was included in the Parramatta rolling list and it commenced on Thursday 6 October 2022. On that date it was tended to by Reithmuller J on the Thursday, then was heard by me on Friday 7 October and Monday 10 October 2022. The father appeared by phone. He had a translator and a s 102NA barrister for the cross-examination of the mother.
Unfortunately, when it came time for submissions the translator could not be found. With the agreement of all parties, written submissions were prepared. I made a timetable for the filing of submissions. The father wanted two weeks to prepare his submissions, but two weeks from when the mother and the ICL provided theirs. I did not do so. I gave him two weeks from the close of evidence, being one week from the end of the evidence where he would be able to commence his written submission, and then a second week after the mother and ICL filed their written submissions. I made the following directions:
THE COURT ORDERS THAT:
1.The Independent Children’s Lawyer and the mother are to file and serve concise written submissions by no later than 4.00 pm on Monday 17 October 2022.
2.The father will file and serve his concise written submissions by no later than 4.00 pm on 24 October 2022.
On 12 October 2022 I issued an additional direction to all parties:
THE COURT ORDERS THAT:
1.In accordance with Orders 1 and 2 of the orders made on 10 October 2022, the parties are to address in their concise written submissions whether the child’s name “[Y]”, born […] 2017 (as is listed on the child’s [Country A] birth certificate) be placed on the Family Law Watchlist.
THE COURT NOTES THAT:
A. The above direction does not alter the time frames for the filing and serving of written submissions as provided for in the 10 October 2022 Order.
EVIDENCE & WITNESSES
The applicant father was represented by counsel pursuant to the s 102NA cross-examination scheme on the first day of the hearing. The father relied upon the following documents:
·Initiating Application filed 30 August 2022; and
·Affidavit of Mr Shahidi filed 30 August 2022.
The respondent mother relied upon the following documents:
·Amended Response to Initiating Application filed 9 May 2022;
·Affidavit of Ms Beiranvand filed 14 September 2022;
·Case Outline filed 28 September 2022; and
·Exhibit 1 (father’s District Court affidavit) and Exhibit 3 (Minute of Order)
The ICL relied upon the following documents:
·Family Report dated 27 January 2021;
·Child Dispute Conference Memorandum (“CDC Memorandum”) dated 10 July 2019;
·Case Outline filed 28 September 2022; and
·Exhibit 2 (Minute of Order).
Only the mother and father were cross-examined. The Report Writer was not required for cross-examination.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon [2003] 234 CLR 492 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
ISSUEs
I did not have an agreed list of issues. Instead, I will address the issues requiring determination in this case based on the orders sought by the parties.
Parenting proceedings – Legal principles.
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans and thus irrelevant here). Section 60B of the Act sets out the objects and principles of Pt VII as follows:
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering” (emphasis added).
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, if the presumption does apply, then it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
It seems common ground that the parents have had no direct communications with each other since separation.
More so, it beggars belief that these parents could equally share parental responsibility when the father has actively pursued the mother by making complaints (all confirmed in cross-examination or from the father’s material) to:
(a)To the ATO for fraud;
(b)To the Australian Department of Immigration for immigration fraud;
(c)To the Health Care Complaints Commission about fraud;
(d)A professional board for forging the signature of her former employer;
(e)By contacting her former employer about forgery and migration fraud;
(f)In the District Court, suing the mother. This was the one that was dismissed when the father failed to provide the security for costs that had been ordered. (Father’s affidavit filed 30 August 2022, paragraph 24);
(g)To a local court where he filed private applications for ADVOs against the mother and maternal grandmother. He then withdrew the claim against the mother and the applicant against the maternal grandmother was dismissed;
(h)To Home Affairs (Father’s affidavit filed 30 August 2022, paragraphs 25 and 36);
(i)About her Country A lawyer accusing him of colluding with the mother to make false allegations and commit an offence (Father’s affidavit filed 30 August 2022, paragraph 13);
(j)To the police about migration fraud (Father’s affidavit filed 30 August 2022, paragraph 21); and
(k)To the Australian embassy in Country H and the Country A embassy in Country H (Mother’s affidavit filed 14 September 2022, paragraph 80 and the father in cross-examination).
Consistently, this is attributed to the father in the Family Report at paragraph 60:
[Mr Shahidi] spoke at some length about allegations he is making regarding [Ms Beiranvand]. He said that she has committed immigration fraud by using fraudulent documents to gain her visa, and falsely obtained registration as a [health professional] in Australia. He said that, furthermore, she has committed fraud in [Country A] in relation to [X’s] birth, in that she obtained a divorce certificate without mention of [X]. [Mr Shahidi] said that he has also contacted the Taxation office, because he believes [Ms Beiranvand] has committed taxation fraud. He went on to say that he believes [Ms Beiranvand] should go to prison, and that the effects on [X] of this would be out of his hands. [Mr Shahidi] stated that he believes he has a duty to inform the relevant authorities and [Ms Beiranvand’s] employers of her transgressions, and that [Ms Beiranvand] “has to pay the consequence” of her actions. He said that, just because she is a mother does not mean that she can commit crimes without punishment, and that she is “a heartless wife and heartless person” who “just respects her pleasure.”
(Family Report dated 27 January 2021, paragraph 60)
Similar sentiments were attributed to the father in the CDC Memorandum of 17 July 2019 (contained within the ICL’s court book at page 43):
[Mr Shahidi] said that, very soon, [Ms Beiranvand] "will be in prison" because she falsified documentation about sponsorship to the Dept. of Immigration. He said that he felt obliged to inform all of the various bodies because, otherwise, he could be complicit in her crimes. [Mr Shahidi] appeared extremely focussed on [Ms Beiranvand's] alleged misdemeanours and spoke about them in a hectic fashion.
The father said this in his written submissions “it is a civil rights of all citizen raise their concerns” (Father’s Written Submissions, paragraph 20). While that is all very good and well, it is hardly a beneficial outcome to the child, if the mother were jailed.
In addition to the local court and the District Court, the father has also litigated (or sought to litigate in) in the appellate jurisdiction of this Court (Mother’s affidavit filed 14 September 2022, paragraph 85); the High Court of Australia (Mother’s affidavit filed 14 September 2022, paragraph 87); the Supreme Court of New South Wales (Mother’s affidavit filed 14 September 2022, paragraph 90) and his current application before the Family Court of City E. The mother deposed that the Supreme Court appeal from his District Court application was finalised in mid-2022. The father’s application was dismissed with costs (Mother’s affidavit filed 14 September 2022, paragraph 90).
Similarly, when the father said the following of the mother, it is impossible to see how the parties could equally share parental responsibility:
(a)She has committed an offence by hiding the child’s birth in the City E Family Court (Father’s affidavit filed 30 August 2022, paragraphs 2.1 and 13);
(b)She could face 10 years in prison in Australia for, it seemed migration fraud, even though the mother’s evidence was that the father’s allegations and complaints were dismissed (in cross-examination);
(c)The “mother is 42 but her mentality is like a child she think child is like a car, their dog, their house but child is not property, child is human” (in cross-examination);
(d)“The mother wants to took revenge for me so I need to do something for the protection of my child” (in cross-examination);
(e)“I was easily able to hide the [Country A] child’s birth certificate from the mother and push forwarded for her criminal offense in [Country A], then I could convict her in [Country A] and arrested her by interlope (I understand that to be InterPol) while she leave Australia, even for short trip” (Father’s written submissions, p.7).
When the ICL asked if his application for equal shared parental responsibility had “no prospect” of the parents coming to an agreed position for the child’s future, the father said it was all the mother’s fault:
It’s because of the selfishness of the mother and if we think like that so anybody is able to do anything they wish for. This is the courts duty to look at the benefit and well being of the child and make the order and convince the mother that she needs to knock off being selfish and think that the child is her property and only go ahead with the wellbeing and the welfare of the child.
I agree with the Family Report Writer’s assessment that:
The relationship between [Mr Shahidi] and [Ms Beiranvand] seems to be marked by extreme hostility on the part of [Mr Shahidi], and by fear and distrust on the part of [Ms Beiranvand]. [Mr Shahidi] seemed preoccupied by [Ms Beiranvand’s] alleged misdemeanours and criminal activity, which he appears determined to pursue until [Ms Beiranvand] is eventually punished.
(Family Report dated 27 January 2021, paragraph 73)
I only need to state these few examples above to demonstrate that equal shared parental responsibility will simply not work for the child. It is thus not in the child’s best interests. The presumption is clearly rebutted.
Accordingly, I will make an order that the mother have sole parental responsibility for three reasons: first, the child will live with the mother on all parties’ cases. Second, the father has little if any idea about the child’s requirements; he has not met him and the parents do not communicate. Third, the idea that the parents would be able to equally share anything, much less major decision for the child, is just imaginary.
As I have not made an order for equal shared parental responsibility, s 65DAA(1) and (2) (the mandatory consideration of equal time and significant and substantial time) are not engaged.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are to be determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
I turn then to the best interests of the child.
The primary considerations set out in s 60CC(2) of the Act are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to s 60CC(2)(b).
Section 60CC(2)(a): a meaningful relationship
In considering a meaningful relationship per s 60CC(2)(a), in McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests. [122]
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
The child has no relationship with the father. The father has had the benefit of time orders made by consent, but has not met the child. Not long after the late 2019 contact centre order was made by consent, the father left Australia and has not returned.
Instead the father asked me to make an order that should he come back to Australia, the child would spend four nights a week with his mother and three with his father – but this father is a stranger to the child.
The father’s reason for leaving Australia just after the contact centre order was made, said more about his view on the world and his priorities, than his desire to actually have any kind of relationship with his son. He was asked:
Why did you go to [Country A] (this is 2019)? -- Because the mother was disagreeing for my name to be on the identity paperwork of the child not mention me as father. It was something dangerous for the child for two reasons. One is because, the child would be considered as a bastard in [Country A]. And other issues was that the mother could have claimed another man was the father and put him on the birth certificate. The whole issue was the mother because, if the mother agreed to put my name on the birth certificate I wouldn’t have travelled to [Country A]. They were my reasons to go back to [Country A].
He was then asked:
Is it more important to you to go to [Country A] to fix the birth certificate than to spend time with your son? – Both of them are important to me, In [Country A] culture being a bastard son, child of a family is very shameful. It was for the honour of the child that I did this travel.
There was no question at that point (or any) about the child going to Country A. With respect to the “bastard” notion, the father accepted that Australian culture is different. But instead of staying, he chose to leave. That is, the father has chosen to place his lack of entry on the birth certificate to warrant leaving Australia in 2019, over seeing his son.
The father is perfectly entitled to move wherever he wants. However, he has done so at the expense of even starting to develop any kind of relationship with his son. At trial, he still had no concrete plans about actually returning to Australia. The father said in written submissions that as an Australian Citizen he can come whenever he wants. Yet, he has not come to see the child since the contact order was made, or this year after Australian borders opened, or even for trial. Further, whilst he may be able to come to Australia whenever he wants, that gives me nothing certain for the child, or indeed the mother in terms of the future.
Right now there is no father-child relationship, let alone the prospect of a meaningful one. The father has no actual plans to commence any such relationship other than his ill-informed 4:3 proposal for some time in the future should he come to Australia.
Section 60CC(2)(b): protection from harm
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Report described the father as saying these things, which the father did not challenge (no one required the Report Writer for cross-examination):
[Mr Shahidi] stated his intention to “tell [X] the truth” about [Ms Beiranvand] when he is older.
[Mr Shahidi] said that he would “never say bad things” to [X], but that, when he is of an age when he can understand, he will tell him that [Ms Beiranvand] abused [Mr Shahidi]. He said that, when [X] is 14 or 15 he will “tell him the truth,” and give him information regarding “what she [Ms Beiranvand] did.” [Mr Shahidi] said, however, that while [X] is still young, he will show himself as “a kind and happy father who plays with his child.” He expressed the belief that it is important for [X] to understand that he has a good father who loves him, and that [X’s] emotional wellbeing is likely to be compromised if he does not know that his father fought for him. [Mr Shahidi] said that, if the Court does not grant his wishes, he will go to a higher Court and, if this does not succeed, he will “publish in the newspaper.”
(Family Report dated 27 January 2021, paragraph 22 and 35)
(Emphasis added)
The Report Writer summed up the harms at her paragraph 74:
It is beyond the scope of this report to determine the relative veracity of their positions, however, it is concerning that [Mr Shahidi] appears to wish real harm on [Ms Beiranvand]. He acknowledged that the possible consequences for [Ms Beiranvand], were his complaints and allegations upheld, would cause significant harm for [X], however, seemed to believe that this is not his concern. This is disquieting because [Mr Shahidi’s] determination that [Ms Beiranvand] be punished appears to transcend his concern for [X’s] welfare. Likewise, his stated intention that he tell [X] “the truth” when he reaches 14 or 15 years is also troubling, in that [Mr Shahidi] seems determined to speak to [X] about [Ms Beiranvand] in a manner which is highly critical. For [X], hearing such criticism of someone who has been his primary caretaker may place him in an extreme loyalty conflict, such that he feels that he must reject one parent. Children can also interpret such acts as a criticism of them, because they share half of a parent’s inheritance. At the very least, such an occurrence would likely have a profoundly unsettling effect on [X], as he struggles to incorporate one version of a parent with an alternative version being presented by someone who is supposed to have his best interest at heart. It may be that [Mr Shahidi] has not considered the effects of such an action on [X], and that he may be assisted in learning about child development and parenting after separation. If this is the case, then he may be assisted by participation in a parenting after separation course such as ‘Keeping Kids in Mind’ as well as a course such as ‘Circle of Security’ to gain greater understanding of the effect of parental behaviour on a child’s sense of wellbeing. It is also possible, however, that his determination to cause trouble for [Ms Beiranvand] precludes any concern he may have for [X].
(Family Report dated 27 January 2021, paragraph 74)
(Emphasis added)
I accept what was said by the ICL in her Case Outline at page 4(h) that “he does not appear to accept responsibility for what may be the consequences of his actions and his determination to ‘punish’ the mother appears to transcend his concern for his son’s welfare”.
Both parents in this matter make allegations of family violence and abuse. I will consider that as part of the s 60CC(3) factors below.
The critical issue under this second primary factor is that the father’s attitude to the mother, and his unbridled pursuit that she be punished (irrespective of the flow on to the child) along with his plan to tell the child “the truth” at some point. These are harms from which the child needs protection. I accept the unchallenged evidence of the Report Writer as extracted just above at her paragraph 74.
Equally, the non-challenged residential parent - the mother - needs to be protected as much as possible from the onslaughts of the father’s many allegations against her and complaints to third parties. The mother needs to be able to parent, quarantined as much as possible from the father’s preoccupation with proving her criminality.
I thus accept the ICL’s written submissions at paragraph 18 that the father’s pattern of behaviours “borders on abusive and vexatious and has placed a great burden upon the mother and had the potential to destabilise and undermine her parenting of [X]”. Both the mother and child need to be protected from that.
The primary considerations
With respect to the primary considerations, the child has no relationship with the father let alone a meaningful one. The father has no actual, concrete plans for one to develop. In the meantime, the child needs to be protected from the harm, which the father would cause, if the father told the child the father’s “truths” about the mother, or even spoke of the mother to the child in a pejorative and demeaning way that he did speak of her at trial. For example, saying that her mentality is like a child.
Then, I look at the mother’s position and the harm that will be occasioned on her ability to parent if she had to deal with father. I have no reason to doubt her account that the father’s harassment and pursuits have caused her anxiety.
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
The father has failed on this count. He confirmed in cross-examination that he did not take any opportunities to participate in decision making for the child.
The mother has solely fulfilled this role. On the unchallenged evidence on the Report Writer, she has done a sterling job.
The father has also spectacularly failed on the s 60CC(3)(c)(ii) account. He blames the mother for thwarting his efforts to see the child (Father’s affidavit filed 30 August 2022, paragraph 30). However, no sooner than the 2019 consent order for supervised father-son time was made, he left Australia and has not returned.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The father has made no financial support for the child. He lives in a family home in Country A where his family meets his accommodation, food and utilities. The father said he did not know where to make payments; yet he has long known the mother’s legal representatives and there is no evidence before me that he asked them how he could financially contribute to the child and was thwarted. Her mobile number remains the same as when they were together.
In short, the father has made no provision of financial support for the child. Further, the father said this in the Family Report:
He said that he wants to establish an emotional relationship first with [X], and then will provide financial support.
(Family Report dated 27 January 2021, paragraph 34)
In other words, any financial support from the father is conditional. That does the father no credit.
I accept the mother’s evidence that when the father was in Australia there was essentially no point in her seeking an assessment from the Child Support Agency because the father did not work, or worked little, for remuneration and she worked as a health professional.
The financial burden has fallen entirely on the mother.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is an irony in this consideration. The child, by the father’s choices to live away has caused the child’s separation from the father. The mother and ICL propose no changes to the child’s circumstances.
The father, as said, has abstract plans to come to Australia but nothing concrete. In the meantime, the father seeks to prevent the mother traveling anywhere with the child.
That said, the father’s proposal that when or if he comes to Australia, that he insert himself into the child’s life on an almost equal time basis would be a huge change for the child. The father’s proposal to do so completely lacked child focus and insight.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This consideration does not arise. The father, despite the making of a consent order for supervised time, has chosen to absent himself from the opportunity to spend time with the child. The father’s reasons for leaving Australia (the child is a bastard, and the mother could put another man on the birth certificate) were not child focused.
There is no proposal the child travel to Country A to see the father. Indeed, that father completely eschews any travel for the child for the next two years.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
On the strength of the Family Report, I have no doubt and accept the mother has the capacity to provide for the needs of the child, including the emotional and intellectual needs. The father must accept that to be so given he proposed the child live with the mother, whilst he continues to reside in Country A, then, live more with her should he come to Australia at some time in the future.
The father has never provided for the needs of the child including his emotional and intellectual needs. He is completely untested in this regard.
The mother was asked about her concerns for the child in spending time with the father. She listed her concerns as:
(a)His mental health has worsened since relocating to Australia;
(b)He has failed to provide information about his mental health;
(c)He told the Report Writer that he planned to tell the child the truth about the mother at some future point; and
(d)She did not believe the father actually wanted a relationship with the child. She gave the example that he did not spend one moment with the child at the contact centre, but went back to Country A instead.
By Order of 26 April 2021, it was noted that the father was given liberty to re-list the matter, but once he had undertaken a mental health assessment. There is no evidence before me that he has done so.
The mother pointed to an historical diagnosis of the father (Mother’s affidavit filed 14 September 2022, paragraphs 34-42). As noted, the father accepted the letter existed but disputed the diagnosis made by a GP, who is a friend of the mother. The mother also pointed to what the father said of his mental health in his District Court proceedings about seeing a psychologist and psychiatrist, with treatment including therapeutic procedures and medication (Exhibit 1, paragraph 42). The father explained this as being trauma related, particularly from being charged with criminal offences.
I cannot elevate any of this information to a mental health diagnosis. But even if I had sound evidence of some kind of psychiatric label, I would not be terribly troubled by that. What is more important is the father’s words and actions and how they may impact upon the child, and upon the mother and therefore, if impacting on her, derivatively impact the child.
To that end, I have ample evidence and can comfortably find the father is preoccupied with the mother’s apparent criminality and having her suffer the consequences, irrespective of what that might mean for the child.
I accept the mother would be and is concerned about the child being told the father’s truth. I accept the opinion of the Report Writer that:
… such an occurrence would likely have a profoundly unsettling effect on [X], as he struggles to incorporate one version of a parent with an alternative version being presented by someone who is supposed to have his best interest at heart.
(Family Report dated 27 January 2021, paragraph 74)
I also find the father is more preoccupied with proving the mother’s guilt for various apparent frauds, than seeing his son. The father’s medical evidence, scant and old as it is (father’s affidavit filed 30 August 2022, p.20 and 21), does not support any claim he cannot fly to Australia. I have no evidence about the father’s pain, other than his bald assertion, and certainly no medical evidence about his claimed pain, nor expert evidence about it limiting his functioning or capacity to fly.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The child has the benefit of a rich Country A culture and I have no doubt the mother will steep him in an understanding of his culture.
Neither parent adhere to religion in any particular way. The mother gave evidence that she used to be religious but does not practice anymore, she added “but I do believe in God”. The father said this:
I am in the same positon as the mother in regard with the religion. I am not religious. I don’t go to […]. I don’t practice […]. I believe in democracy, love and honesty and I want the child to have an upbringing according to democracy for all human beings. My beliefs is based on love, honesty and love but the difference is the mother believes under ownership but me under love and honesty, that’s the only difference. But I am not religious, I am exactly like mother in that manner.
Despite professing to being in the same positon as the mother, the father could not resist yet another gibe at her. I have no doubt the mother will ensure the child understands his Country A culture. For example, in his written submissions, the father told me the child speaks fluent Country A language. That is a credit to the mother and bolsters my view that she will ensure the child is alive to his cultural heritage.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
The mother is plainly a responsible parent. I say that because I accept the unchallenged opinions of the Report Writer, and have had the benefit of hearing the mother give evidence.
Conversely, the father has a poor attitude to the child and lacks an appropriate attitude to parental responsibility. I say this for a number of reasons. First, he chose to leave Australia and thus the child, not once, but twice. He has been gone, the second time, since 2019. The father said Covid stopped him coming back along with surgery. I can take judicial notice that Australia’s borders are open. He provided no current medical evidence that his surgery or pain prohibit travel other than a nebulous letter that I have already referred to of 30 August 2021. Second, he has relentlessly sought to have the mother face the consequences of her many apparent frauds. Third, the father seemed impervious to and untroubled by the impact on the child from his dogged pursuit of the mother’s alleged crimes, if the mother was, in fact, incarcerated. He told the Family Report Writer:
He acknowledged that the possible consequences for [Ms Beiranvand], were his complaints and allegations upheld, would cause significant harm for [X], however, seemed to believe that this is not his concern.
(Family Report dated 27 January 2021, paragraph 74)
At paragraph 25 of his affidavit, the father said these were the possible outcomes of some apparently current complaint to Home Affairs:
Mother and child loose citizenship and deported to [Country A].
I pause to note that he described Country A as being too dangerous for the child. His next outcome was:
Mother became ex-citizen, which means that she could stay at Australia, but if she leaves, even temporary she is not able to return.
I pause to note that if the mother leaves then there is a very good chance the child will be put in the same position too. The third of his outcomes was this:
Mother offense considers as a criminal offense and she will face with imprisonment.
Of these consequences, the Report Writer observed, he “seemed to believe that this is not his concern” (Family Report dated 27 January 2021, paragraph 74).
(j) any family violence involving the child or a member of the child's family;
Both parties allege the other committed acts of family violence against the other. In particular, the father said the mother was controlling, requiring him to do the housework whist she worked outside the home for remuneration (Family Report dated 27 January 2021, paragraphs 17 and 40). He also said the mother was aggressive in any discussion in relation to the birth of their child.
There was no cross-examination of any moment on these allegations, which was understandable, given the historical nature of the allegations and the other pressing issues at hand. Accordingly, I do not find the mother committed any acts of family violence or abuse on the father.
I consider the orders made naming the mother as the protected person under the next subheading.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
The assault charges brought by the police were dismissed. However, the mother received the protection of a final ADVO, which was then extended by a further year. I accept that on the face of these Orders, the father committed acts of family violence and abuse against the mother.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The father will probably appeal any order that does not accord with his views. But, that is no reason to make the orders he seeks, which would be contrary to the child’s best interests, just to avoid further proceedings.
If the best predictor of the future is the past, the father will continue his litigious pursuits. All I can do is make the orders I consider to be in the child’s best interests.
(m) any other fact or circumstance that the court thinks is relevant.
A continual theme in the father’s evidence was that I must stop the mother from being able to travel overseas, because if some migration fraud catches up with her, she will flee the country with the child to avoid 10 years in jail.
I have no evidence of any actual migration proceedings (or anything else for that matter) against the mother. I do not consider the mother is a flight risk. She has established her life, her professional life, the child’s life and education in Australia.
Parenting arrangements
The Report Writer said this:
If the Court holds concerns, however, about undue risk to [X] through [Mr Shahidi’s] mental health or inability to contain his hostility towards [Ms Beiranvand] when with [X], it is recommended that he spend no time with [X].
(Family Report dated 27 January 2021, paragraph 81)
I cannot make any findings about the father’s mental health on the state of the evidence. However, his hostility to the mother knows few bounds.
The father’s preoccupation with the mother’s criminality and wanting to tell the child his truth at some point (Family Report dated 27 January 2021, paragraphs 22 and 35), along with the father’s abhorrent disregard for the child if the mother was jailed (as a consequence of his many complaints if made out), speak to his attitude to the child and capacity to parent. They do not allow me to conclude that any time would be healthy, worthwhile and advantageous to the child (see Loddington, supra).
This is matter where, having considered the additional and primary considerations, I cannot find that crafting orders for time between the father and child, at some unknown time in the future, would be anything other than making time with orders for the sake of making time with orders (see Cotton, supra).
Accordingly, and returning to Cotton, this is a matter where time is “likely to cause more harm to the child than good”. In those circumstances, little is to be served by making orders for time at some unknown time in the future. Suffice to say, I will not make the father’s three nights a week time proposal for he and the child should he come to Australia at some point down the track.
The mother and ICL have adopted the recommendations of the Family Report at paragraph 82 – sending birthday cards. They have both added Christmas cards. I will make that order for the reasons expressed by the Family Report Writer, in short to avoid the child’s sense of complete loss of his father and to try to avoid the child over idealising the father in a complete absence. I am also confident the mother will seek professional help to navigate these issues as she indicated at trial.
Upon balancing the harm to the child along with my findings about the lack of meaningful relationship and lack of the prospect of one, I will make the orders sought by the ICL and the mother, that is that the child have no time with his father.
Other issues
Birth certificate: the father asked to be named on the child’s Australian birth certificate. The mother had long resisted that out of concern that would allow the father to secure a Country A birth certificate for the child. It transpired the father was able to secure one anyway (fathers affidavit filed 30 August 2022, paragraph 15), albeit with different names than registered here, but on the same [Country A] identity number.
By the time of her final Minute of Order (Exhibit 3), the mother agreed to having the father on the birth certificate and proposed terms for such an order. Consequently, the ICL did not oppose this order. I will thus make the order as proposed by the mother. I will also order the father pay the associated costs as proposed by the mother and ICL. I do so because the father makes no financial contribution to the child. This is a further burden that the mother does not have to bear.
Child’s last name: the father sought an order that the child’s last name be changed to his. I will not do so. It is not in the child’s best interests (Tinley and Colton [2020] FamCA 1015) to have a different last name from his sole carer. His last name, even despite his tender years, is one he must know. I have no evidence before me how imposing a new last name on him would impact upon him. Instead, I prefer the continuity and consistency of his name remaining as is. The child’s paternity will be added to his birth certificate and this will provide a link to his father. I also accept the mother will seek professional assistance to help her help the child to understand he has a father.
Restraints: both the mother and ICL proposed a number of s 68B restraints enjoining the father from attempting to contact or approach the mother or child. The mother submitted in her Case Outline that the history of the father’s conduct towards the mother (and by this I understand this to mean the plethora of complaints he has made about her and proceedings brought) has been one of intentional harassment, been a burden to the mother and provoked anxiety on her behalf. It was said that his conduct justified the making of the injunctive relief sought.
I agree. It is appropriate to make those restraints because first, the father continuously tormented the mother since separation including reporting her to the various departments I have already mentioned. Second, the mother needs some peace of mind that she can parent without the prospect of the father simply turning up unannounced.
I will not however make the restraints sought by the father that the mother not approach his home or employment less than 100 metres. I have accepted the mother’s evidence that she will not travel to Country A because of all the risks identified by the father. The father has no home in Australia nor employment here making his proposed order futile. Should he come to Australia, I am in no doubt the mother will keep as far away from him as possible, and has sought restraints to keep him away from her and the child.
Reports each semester: the father sought an order that each semester the mother report the child’s residential address, school address and “transcript for the child’s school” to the father. I will not make that order. The mother needs to parent. She does not need to be worried that the father, knowing the addresses, could turn up any time unannounced. I also do not make the orders because they would run counter to the restraints against the father that I will be making. I am also not prepared to make an order for the provision of the transcript (I assume a school report) because this could become just another way for the father to litigate against the mother or the school, if he did not like what he read. In the circumstances of the father’s preoccupation with the mother’s apparent criminality, I am not prepared to make an order that peels away the security for the mother that comes with the father not knowing her address or the child’s school address. The mother is the child’s sole parent; it is important for the child that the mother feel as safe and secure from the father as she can.
Maternal grandmother: the father proposed the maternal grandmother have no time with the child. I gather she lives in Country A and has visited Australia perhaps once or twice. The father said in his affidavit at paragraph 28:
[Ms J] suffering [a mental illness] and father witness the effect of [Ms J] on her mental illness. [Ms J] also regularly using addicting drug, even in front of children and adolescences of our family. I repeatedly objected to her behaviour and it was one of the reasons our conflict together
The maternal grandmother denied allegations of this variety in the Child Dispute Conference Memorandum.
There is no evidence before me to support what the father asserts. I cannot make any findings of the kind that would be required to make the no contact order sought by the father. Even if the maternal grandmother had some difficulties, I have observed the mother and do not accept she would put the child in harm’s way.
Psychiatric assessment of the mother: the father said this in his affidavit at page 11:
Father believes that requested orders by the mother for the final orders are nothing except her attempt to impose much pain and embarrassing to the father. She asks the court that father never see his child in his life and just communicate with him through the mother's email. She wanted to prove the father that she has unlimited power and she can humiliate me, even though my child's custody proceeding. Father showed Maximum Corporation with the court, but Mother proved that she is full of hate and even did not consider her child long-term benefit. This is the reason that mother's mental health should be evaluated by the qualified clinical psychologist or psychiatrist.
To the Report Writer the father said this:
[Mr Shahidi] said that [Ms Beiranvand] must have mental health problems because she “does not care about the safety of her son.” He stated that he is unaware of any diagnoses.
(Family Report dated 27 January 2021, paragraph 51).
The Report Writer raised no concerns with the mother’s psychiatric presentation nor suggested such an assessment was warranted. Appropriately, the mother has sought assistance from her GP and a counselling referral over the stresses of litigation (Family Report dated 27 January 2021, paragraph 55).
I accept the Report Writer had no concerns and accept the mother will seek supports when needed. I will not make the order sought by the husband; it is unnecessary.
Watchlist: the father proposed that the child’s Australian birth certificate name remain on the Watchlist. In evidence, he spoke about a prohibition on all overseas travel for two years except for medical treatment unavailable in Australia. He also said a number of times that he expects the mother will “sneak” the child into Country A to see maternal family, without him knowing. He spoke both in his affidavit, in oral evidence and his written submissions that that could present difficulties for the mother and child, because, in certain circumstances, it would require his permission for the mother and/or child to then depart Country A. The father confirmed in written submissions that if mother travelled with child under name “[Y]” she would need his permission to return to Australia. This is untenable for the mother and child.
He also told the Report Writer that:
[Mr Shahidi] claimed that, should [Ms Beiranvand] come to [Country A] with [X], she may be arrested, and that [X] would be “left in a dirty airport,” and that “maybe someone will come and take him away.” He said that many children are stolen in [Country A] and are very vulnerable. [Mr Shahidi] offered this scenario as indicative of [Ms Beiranvand’s] lack of concern for [X’s] safety.
(Family Report dated 27 January 2021, paragraph 47)
Conversely, the mother gave evidence that she had no intention of travelling to Country A, for all of the risks the father outlined. I accept her evidence. The overseas holiday she had planned, but for Covid, was a trip to Country K. I consider there to be nothing untoward or concerning about such a holiday choice. Despite consenting to the order, the father was highly critical of the mother in submissions for considering Country K because of Covid. However, whilst the mother had asked for the Court’s permission to travel, and the father consented, once Covid reared its head she cancelled the trip.
In circumstances where I will make a sole parental responsibility order and an order that the child have no physical contact with the father, I will not prevent the mother from travelling where and when she might wish to with the child.
The father said this with respect to travelling outside of the Commonwealth: the father perceived this as unnecessary right for him to “give” to the mother. It is not a right of the mother or father. Parents have obligations. I formed the view that it is in the best interests of the child that he [the child] be able to travel, on the Australian birth certificate name, with the mother for holidays. Travel is an education itself that can be rich and rewarding.
I will order that the child’s name, being the one on his Australian birth certificate, be removed from the Airport Watchlist. I will order that the mother does not need the father’s consent to travel overseas, or to secure an Australian passport for the child, or a renewal. I refer to my reasons for making a sole parental responsibility order and the father’s opposition to the child travelling anywhere outside of Australia for two years – that is, the idea he might consent is one that is fanciful. I also accept the ICL’s written submissions at paragraph 28 that the father’s proposed, “extension of the airport watch list for a further two years would represent an unnecessary and unwarranted fetter on the capacity of the mother to travel with her son, should she wish to do so”.
It then follows that I will not make the orders sought by the father that the child’s name remain on the Watchlist, the child only travel with the father’s consent and that the child not leave Australia for the next two years unless for medical treatment unavailable in Australia.
However, that is not the end of the matter. It came to pass during the trial that now the father has a Country A birth certificate for the child (albeit in the name of “[Y]”) he could then apply for a Country A Passport for the child. He confirmed that in cross-examination. That would then mean that the father could travel to Australia and if perchance he saw the child, there would be nothing stopping him from taking the child outside of the Commonwealth of Australia on the child’s Country A Passport. Country A is not a signatory to the Hague Convention in relation to child abduction. The father also told me in written submissions that he can return to Australia anytime he wishes, and, that his family have “considerable money”.
As mentioned, I issued a direction on 12 October 2022 asking the parties for submissions on the child’s name pursuant to his Country A birth certificate being placed on the Watchlist.
The ICL’s written submissions were silent on the topic. The mother supported the child’s name, per the Country A birth certificate, being included on the Airport WatchList. In her written submissions at paragraph 25, she said as follows:
[Country A] is not a signatory to the Hague Convention and the consequences of the Father’s impermissible removal of the child from Australia may have irreversible consequences.
The Father has sought to obtain the [Country A] Birth Certificate without the Mother’s consent or knowledge and the his intentions behind doing so remain a significant cause of concern.
There is no evidence that the Father may not simply seek to amend the [Country A] Birth Certificate to an alternative name for the purposes of circumventing any Watchlist Order.
However, given the risk of harm to the child, the Mother submits that it is necessary and appropriate for the Court to make Orders placing the name [Y], born […] 2017 on the Family Law Watchlist, in addition to the 68B Injunctive Orders as sought by the Mother.
The father’s written submissions said:
she can use the current child’s birth certificate with name of [Y] however she need my permission in return to Australia, mother is not ready to corporate with the father for parenting matter and therefore it is not an option for my ex-wife.
(Father’s written submissions, paragraph 9)
I will make an order to include the child’s name per his Country A birth certificate on the Airport WatchList. I do so because there would be nothing stopping the father from coming to Australia and removing the child on that Passport, to Country A, or some other non-Hague country. Whilst the father said Country A was very unsafe, I cannot help but observe that he has remained there for a considerable period. Further, where I accept the Report Writer’s opinion (contained within paragraph 74) that the father appears “to wish real harm on the mother” I will thus list the child’s name per the Country A birth certificate to alleviate the risk of the father removing the child from the Commonwealth to a non-Hague country as a way of doing “real harm” to the mother. Even if I am wrong on that last finding about the risk of harm, then, the mother – the child’s only residential parent – needs as much comfort as can be provided, that the child will not be impermissibly removed from Australia.
Relocation: the father sought to control where the mother resided with the child, seeking an order that she not relocate from the Sydney area without his consent. In circumstances where he is a hemisphere away and has been for some time, where he has not even met the child and has made no contribution to him, it was highhanded in the extreme (and quite telling) for the father to seek this order. In those circumstances, I will not make an order that allows him to control where the mother lives. In addition, I refer to and rely upon my reasons for making a sole parental responsibility order in support of this outcome.
The ICL: the father’s submissions asked for discharge of the ICL, but there is no Application in a Proceeding before me. In any event, I do not accept the ICL has done anything other than what is required of her under s 68LA of the Act:
(2) The independent children’s lawyer must:
(e)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(f)act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4)The independent children’s lawyer:
(a) is not the child’s legal representative; and
(b) is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(g)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(h)endeavour to minimise the trauma to the child associated with the proceedings; and
(i)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children’s lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
(c) any information that the child communicates to the independent children’s lawyer.
(7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
In Lloyd & Lloyd and Child Representative (2000) FLC 93-045 the following was said about the removal of an ICL at [11]:
Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i)if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii)if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii)if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv)if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
Here, what is asserted to be contrary to the child’s best interests is that the ICL’s position is at odds with the father’s. His criticism is one of objective professional judgment. What is necessary to bear out this criticism is that the position taken by the ICL be so clearly unreasonable as to be no exercise of the ICL’s role. That is an inherently difficult position to make good; here, the father has not - not that he has an Application in a Proceeding for discharge in any event.
Similarly, the father said the ICL was biased, again essentially because she did not accept his position and contentions. Section 68LA speaks of impartiality but does not exclude an ICL from forming views on the case and the best interests of the child prior to or after the full presentation of evidence. Indeed, s 68LA(2)(a) requires the ICL to “form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child”. In this matter, the position taken by the ICL is not so extreme as to evidence bias, either actual or apprehended. Rather, the position taken by the ICL is entirely consistent with a child focussed approach to the best interests of this child.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 28 October 2022
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