Sharif & Yamin
[2022] FedCFamC1F 958
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sharif & Yamin [2022] FedCFamC1F 958
File number: MLC 1030 of 2012 Judgment of: CARTER J Date of judgment: 7 December 2022 Catchwords: FAMILY LAW – PARENTING – protracted litigation – interim hearing – where the child is thirteen years old – where the co-parenting relationship is extremely poor – where the mother seeks a change of residence – where the mother seeks a moratorium on the child’s time with her father – where the child opposes having a relationship with her mother – change of residence not in the child’s best interests – where the father seeks to travel to Country B with the child – where Country B is not signatory to the Hague Child Abduction Convention – where the Australian Government has issued a travel warning to Country B – where the child is on the Family Law Watchlist – interim applications dismissed – matter set down for final hearing – orders made. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZX Cases cited: Banks & Banks (2015) FLC93-637
Line & Line (1997) FLC 92-729
Division: Division 1 First Instance Number of paragraphs: 86 Date of hearing: 30 November 2022 Place: Melbourne The Applicant: Litigant in person Solicitor for the Respondent: Ms Bramham, Bramham Lawyers Counsel for the Independent Children's Lawyer: Joy Elleray Solicitor for the Independent Children's Lawyer: VM Family Lawyers ORDERS
MLC 1030 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YAMIN
Applicant
AND: MR SHARIF
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CARTER J
DATE OF ORDER:
6 OCTOBER 2022
THE COURT ORDERS THAT:
Final Hearing
1.All applications for final orders be adjourned for hearing before the Honourable Justice Carter on 8–9 and 13 June 2023 at 10.00am as a three day matter and that the evidence in chief of all witnesses be given by affidavit.
2.The applicant file and serve upon all other parties 35 days prior to trial date:
(a)an Amended Application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including one consolidated updated trial affidavit by the applicant.
3.The applicant pay all setting down and trial fees 28 days prior to trial.
4.The respondent file and serve upon all other parties 21 days prior to trial date:
(a)an Amended Response setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including one consolidated updated trial affidavit by the respondent.
5.The applicant file and serve any affidavit in reply to that of the affidavits of the respondent, within 14 days from the date of the respondent filing material.
6.On or before 4:00 pm 7 days prior to the trial date, the Independent Children's Lawyer file and serve upon all other parties, any affidavit material relied upon.
7.No party file any further material other than as provided by these orders without leave of the Court.
8.Prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties' outlines of case.
9.All parties have leave to issue subpoena(s) for the production of documents or attendance of a witness by arrangement with the registrar docketed with the management of the file.
10.All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
11.Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:
(a)the Court may re list the case requiring the parties to justify why it should not be taken out of the list; and
(b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
12.No later than 7 days prior to the trial date, all parties shall file and serve a case outline document which shall include:
(a)a list of the material relied upon;
(b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;
(c)a bullet-point summary of argument in relation to the issues in dispute;
(d)a brief chronology listing significant events that are relevant to the issues to be determined by the Court; and
(e)the final orders sought;
and such case outline be sent to Chambers as a word document.
13.No later than 7 days prior to the trial date, the Independent Children’s Lawyer is to electronically provide to chambers in word format a joint minute setting out precisely the issues that are agreed and those issues that require determination by the Court.
14.The practitioners for the parties file and serve electronically and send a copy to ...@... 7 days prior to trial date the following:
(a)a trial plan; and
(b)a list of objections to evidence upon which rulings are required.
15.Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.
Updated Family Report
16.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X born 2009, attend upon Mr C, Family Consultant appointed under Regulation 7, (referred to as the Family Consultant) for the purposes of the preparation of an updated family report, such report to be released by 10 April 2023 and that the family report address:
17.any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(a)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(b)the impact upon the child’s relationship with the mother if the Court made orders as sought by the father;
(c)the impact upon the child’s relationship with the father if the Court made orders as sought by the mother;
(d)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
18.Not later than 4.00 pm on 13 December 2022 the parties must provide their contact telephone numbers and email addresses to …@….
19.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
20.The parties and the child shall attend for interviews at such times and dates as the Family Consultant may advise AND IT IS REQUESTED that the interviews occur in person at the Melbourne Registry.
21.By no later than 10 March 2022:
(a)each of the parties and the Independent Children’s Lawyer shall send to the Family Consultant, copies of any documents they have filed in these proceedings since 30 March 2022; and
(b)the Independent Children’s Lawyer shall send to the Family Consultant a copy of Ms D's reports completed in these proceedings.
22.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
23.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
24.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
Expert Report
25.The Independent Children’s Lawyer is to obtain a report from Ms D, AND IT IS REQUESTED THAT Victoria Legal Aid fund the preparation of that report, affidavit, and the costs of Ms D to attend at the final hearing if she is required to give evidence
Interim Applications Dismissed
26.All extant interim applications and Applications in a Proceeding are hereby dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
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 Sharif & Yamin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The applications currently before the court are:
(a)the father’s interim application to travel with the parties’ child X (“X”), born 2009, now aged 13 years old; and
(b)the mother’s interim application filed 18 August 2022 that X live with her, and that there be a six month moratorium on time with the father.
The matter has a long and complex history. I note the matter was before me for five days in March this year. At that time the parties gave oral evidence and were subjected to cross-examination. The transcripts of that evidence have been admitted into evidence in these proceedings pursuant to section 69ZX(3)(a) of the Family Law Act 1975 (Cth) (“the Act”). The chronology I now set out comes in part from the material filed by the parties, and in part from the transcripts admitted into evidence. However I note that as these are interim proceedings I am not making findings of fact at this stage in relation to the chronology of events where the parties’ recollections differ.
Background
The mother came to Australia in 1994 with her family from Country B. The father came with his family to Australia around the same time. The parties married in a religious ceremony in mid-2008. The mother was 15 years old. It was an arranged marriage.
The parties separated in January 2011. X initially lived with her mother. The parties at that time were living in City E with the father living with his family, and the mother living a few streets away with hers.
In around late 2011, it appears the parties entered into a religious divorce. There is some dispute about the terms of that divorce. It is the mother’s evidence that the agreed terms of the divorce included a provision that if the mother was to remarry X would be placed in the father’s care.
X remained in her mother’s primary care until the end of 2011. Until that time she was spending weekends with her father and the paternal family.
In late 2011, the mother went to Country B for around 2 months. As best as I understand it that was to visit her grandmother who she said was gravely ill at that time.
The mother says the parties agreed that X would remain in her father’s care during the mother’s trip overseas. However, she said the father reneged on that agreement very shortly before she was due to travel. She said in the circumstances she left the child living with her brother, with whom she and the child were residing at the time.
There is some dispute as to the chronology that followed thereafter. As best I can tell, the father formed the view that the mother had abandoned X. It appears he obtained orders in the City E Magistrates’ Court in about early 2012 in the mother’s absence. I do not have a copy of those orders but I understand from the father’s material that he says he was provided with “full custody” of X at that time.
It is the mother’s case that she returned to Australia in early 2012.
Proceedings in the Federal Circuit Court of Australia, as it then was, were commenced by the father on 9 February 2012.
There is some dispute as to the care arrangements for X at that time. The mother said the parties implemented a shared care arrangement for the child shortly after she returned from Country B on a week about basis with changeovers occurring at the F Town police station. She said at that time she remained living in City E but the father was living in Melbourne.
Federal Magistrate McGuire, as he then was, made orders by consent on 28 May 2012. Those orders discharged the earlier orders of the City E Magistrates’ Court and provided that the parties have equal shared parental responsibility for the child. His Honour’s orders also provided for X to live with the mother with the father to have supervised time at a children’s contact service. Further, X was placed on the Family Law Watchlist and the matter was adjourned.
Again there is some dispute as to the events that took place thereafter. The mother said the father travelled from Melbourne to City E to exercise time with X and she complied with the orders. The father says there was significant non-compliance with those orders by the mother.
There were further orders made in November 2012. Those orders suspended the earlier orders that the father spend professionally supervised time with X. No other order was made for her to spend time with the father. The matter was adjourned to 11 February 2013.
On 11 February 2013, the court ordered that the mother have sole parental responsibility for X, that she live with the mother and that the father’s time with her be reserved. That appeared to be the conclusion of that round of proceedings.
Again there is dispute as to what happened next. In about late 2013, when X was just four years old, the mother relinquished X into her father’s care. There is no agreement as to why that occurred. The mother asserted male community members brokered a deal, pursuant to which X was to be placed in the father’s care as the mother was about to travel to Country B to remarry. She said part of the agreement was that X would then spend alternate weekends with the mother upon her return from Country B. The father said he was unable to recollect such an agreement.
X was then placed in her father’s care. Unfortunately for X that transfer of care appears to have been implemented quite suddenly. At that time she had been living with her mother and spending limited time only with the father. She was then placed in the full-time care of the father and entirely ceased spending any time with her mother. This no doubt would have been extremely distressing and confusing for X.
There has been no meaningful contact or relationship between X and her mother since that time. The parties give very different explanations as to why that is so. The father said he has done all he can to assist X to have a relationship with her mother, but that X does not want a relationship with the mother. He said X feels she has been abandoned by the mother, and wants nothing to do with her. Conversely, the mother says she has done everything she can to pursue a relationship with her daughter but every attempt is scuppered by the father or members of the paternal family.
The mother left Australia for Country B in around early 2014. She did that notwithstanding she had spent no time with X since placing her in the father’s care some five months earlier. The mother remained in Country B for about six weeks and returned to Australia in early 2014. Whilst she was in Country B she married Mr G (“Mr G”). The mother and Mr G share three children.
Again the parties’ narratives differ. The mother maintains she attempted repeatedly to arrange visits with X upon her return to Australia, calling upon family and community members to assist her. She said despite multiple attempts a father and his family refused to allow X to see her mother or communicate with her in any meaningful way. Regrettably, the mother did not issue proceedings for parenting orders pursuant to the Family Law Act for more than four years after she returned from Country B. That was approximately five years after she had placed X into the father’s care, and all meaningful time between the mother and child was ceased. It appears from the chronology of events, that as a result of cultural and/or religious expectations, the parties seemingly allowed others in their community to make decisions regarding the care of X. According to the mother’s evidence, she then relied on those same people to try to enforce the agreement from 2014 until she brought proceedings in this court in 2018.
It is the father’s evidence that the mother made no genuine attempts to see or communicate with X. He said the mother abandoned X and that the mother did not want anything to do with the child. It does not appear from the father’s material that either he or his family made many positive attempts to facilitate time between X and the mother or to repair that relationship.
I note that in 2016, the father and his family facilitated a visit between X and her mother, on the proviso that the mother sign a passport application for X. That visit lasted about 15 minutes. It is common ground that in 2017, there was another brief contact between X and her mother at a park. In around late 2017, the mother sought the parties attend dispute resolution. The father declined to participate.
Unfortunately for X, the years during which her mother unsuccessfully sought the assistance of her community to facilitate time, and did not herself remain in communication with X, or seek the court’s intervention – have meant that X now has a somewhat unshakeable belief that her mother abandoned her when she was young, and that the mother now only wants to cause X distress and difficulties.
The mother issued these proceedings on 15 October 2018. Over the course of the proceedings, various orders have been made to try to re-establish the mother/daughter relationship, to no avail. Orders were made in November 2018 for X to spend time with the mother on alternate weekends. This was unsuccessful. Subsequent orders made in May 2019 provided for X to have professionally supervised time with the mother at a children’s contact service. That was also unsuccessful, with the father not enrolling X in the centre for a protracted period. X subsequently refused to attend.
Other attempts have been made utilising family members, and members of the parents’ community, to get X to spend time with her mother.
Mr C (“Mr C”) prepared a Family Report in preparation for the final hearing that was to commence before Judge Stewart in 2020. In his report he noted those unsuccessful attempts were short lived, brought to a premature end, and were marked by X refusing to go, or opposing time.
The parties and X attended upon Family Consultant Ms H (“Ms H”) on 28 May 2019 who prepared a Child Inclusive Conference Memorandum that day. At that time, X was nine years old.
The father reported to Ms H that according to his religious beliefs, as he is now divorced form the mother, he is not permitted to see her without her religious garment. He said all photographs of her had been deleted and his family did not refer to her, or discuss her. I note that when X showed Ms H photographs of X as an infant, none of the photographs included the mother.
The mother reported to Ms H that on any occasions she was able to see X, X would hide from her, run away from her and repeatedly ask for her father.
Ms H described that X was withdrawn and oppositional at the commencement of interview, and required considerable coaching and “a firm directive” from the Family Consultant so that she would leave her father and attend the play room for interview. She did comply, but repeatedly asked to leave and wanted to return to her father.
Ms H reported X did not interact with the other children in the play room.
At interview X described a very close and loving relationship with her father, paternal grandmother and other members of the extended paternal family. She said she wanted to live with her father, and did not want to see her mother. She described spending time with her mother as “annoying” and that it was a waste of her time. She said she did not know her mother and did not want to know her mother. She said her mother has a husband and children and “does not need me as her child of my Dad as her husband”. She said she would refuse to see her mother and run away if the court made orders for her to do so. Ms H said X was “very clear she does not want to see her mother, she does not regard her as part of her family and perceives her as a stranger”.
Ms H was concerned that X had been influenced to reject her. She described that there has been an ‘obliteration’ of the mother, not just in relation to spend time arrangements, “but also in the form of memories, photographs and discussion. [[X’s]] views are likely compromised and should be considered with caution”.
In light of X’s strong reaction regarding spending time with the mother, Ms H said arrangements relying on the paternal family engaging in handover or encouragement of time would likely be futile. She said the family would require professional assistance from a supervised contact centre, in conjunction with additional counselling for X, and court oversight. She also recommended X attend a Supporting Children After Separation Program and that the parents complete a Parenting After Separation Program.
Orders made at that time included an order for child to engage with the psychologist ongoing therapeutic counselling. That order was not complied with. There were further orders made on 31 October 2019 for the child be psychologically assessed. Similarly that did not occur.
Further orders were made on 26 February 2020 for X to engage with Mr J (“Mr J”) for therapeutic counselling, in an attempt to repair the mother/daughter relationship. Supervised time at a Children’s Contact Centre was again ordered.
The father and his family relocated from their home in Suburb K to their property near City E in early 2020, as a result of the COVID-19 pandemic. The father said X continued to attend her school in Melbourne, as classes were conducted online at that time.
Mr J’s involvement was marred by significant difficulties, predominantly with the father, in arranging appointments. As I understand it, the father formed a view that Mr J asked culturally inappropriate questions of X. He also objected to X having to be taken out of school and driven a significant distance to attend appointments which she resented doing. At best the father facilitated only two or three attendances over the many months of Mr J’s attempted involvement.
Family Consultant Mr C interviewed the parents and X on several occasions across 2020 for the purposes of preparing a Family Report dated 20 October 2020. This was during the COVID-19 pandemic, and all interviews and observations were undertaken by telephone or video conferencing.
The father initially told Mr C that X had no mother. He then said she did have a mother, but did not have any contact. He told Mr C the mother appeared to have “forgotten all about [[X]]”. He maintained that he has encouraged X to see her mother, “[b]ut it’s up to her”. At that time, X was 11 years old. Mr C said the father was reluctant to insist or direct that X spend time with the mother.
The mother advised Mr C that she had only engaged the court system after exhausting options within her community to assist the family. She admitted she had not sent gifts to X over the years.
Further orders were made in 12 November 2020 by Judge Stewart. Her Honour required the father to obtain a referral for X to the medical unit at the M Hospital. The father did not comply with that order. The matter returned before Judge Davis on 16 November 2021. His Honour required the father to comply with that order by Judge Stewart within the month. His Honour made additional orders including that the mother be able to obtain information from the child’s school, that she be able to attend parent teacher interviews, that should be able to liaise with medical practitioners as to the child’s welfare and development and that the mother be at liberty to send the child cards, photographs, gifts and letters.
As best I understand, the father did attend upon the M Hospital as was ordered. However they determined that they were unable to assist the family. The father then did not seek any other psychological assistance for X.
The matter then commenced before me via Microsoft Teams and proceeded on 23–25, 28 and 30 March 2022.
Mr C attended in the virtual court room throughout the evidence given by the parties in March 2022 as well as hearing the evidence of the paternal grandmother. The court is very grateful that he did so, as it enabled him to hear each party given extensive evidence, and accordingly, he was able to comment meaningfully upon that evidence from his perspective.
Notably, at the outset of his oral evidence, Mr C indicated that he resiled from his recommendation made in his Family Report that there ought be no orders for X’s time with the mother. He urged that the court make orders for X, and the parties to engage in reunification type therapy, with an appropriately qualified practitioner for a minimum of six to eight sessions, in an attempt to assist with the restoration of the mother/daughter relationship. Whilst a therapeutic intervention had been started with Mr J, it was Mr C’s view that failed as there was no cohesive, or comprehensive attempt at reunification. There had not been multiple in-depth sessions. Rather, there were only two or three sessions conducted. The process then came to a premature conclusion.
At the conclusion of the hearing before me, consent orders were made which provided, inter alia, that the parties agreed to engage Ms D (“Ms D”), accredited mental health worker, to provide restorative family therapy to X and her mother. She was agreed as the parties identified Ms D as being able to provide culturally appropriate family therapy. At that time the Independent Children’s Lawyer made it plain that in the event the father failed to comply with the orders for restorative family therapy or obstructed those orders in any way the matter would be relisted before me and orders sought for a change of residence.
The matter was adjourned to 3 August 2022. The Independent Children’s Lawyer advised the court that to an extent the parties had engaged with Ms D. However the father said he no longer agreed to therapy continuing as X was highly resistant to it, that it was distressing her and that no progress was being made in repairing the mother/daughter relationship. The matter was adjourned to 9 September 2022 with the Independent Children’s Lawyer to obtain a report from Ms D in the meantime.
On 9 September 2022 Ms D adopted her report that had been prepared and gave some brief oral evidence. Ms D indicated that the mother had completed all her scheduled sessions. However, the father and X had not completed their sessions. Ms D said the father stopped communicating with her and it was difficult to arrange appointments with him. Ms D said whilst X was initially somewhat interested in her mother, that interest evaporated when the mother did not contact her following a religious event. She described that X was feeling very deflated and disheartened at that point. Notwithstanding those observations Ms D expressed a strong view that restorative therapy and reconciliation was worth pursuing for this family. She noted that the father’s complaints about the mother appeared significantly historical and that X herself could not articulate why she felt unsafe with the mother or felt it was unreasonable that she should not have a relationship with her. At that time Ms D indicated that unless the father complied with therapy it seemed likely the only way that X could have a meaningful relationship with her mother would be in the event there was a change of residence.
Following that evidence, very sensibly, the parties agreed to resume the therapeutic counselling. Orders were made that day by consent for X to communicate with the mother by FaceTime or like electronic means each Tuesday and Friday. The parties were to reengage with Ms D.
Whilst I adjourned the proceedings on 9 September 2022 with some hope that there was still a positive therapeutic way forward, yet again that intervention has broken down. The mother said she has waited by the phone each Tuesday and Friday. She said not a single call has been made to her by X. The mother also said she is ready, willing and able to resume therapeutic counselling but she believes the father will not adequately support that process.
The father said he has done all he can to try to encourage X to make phone calls to her mother but she refuses to do so. He said further he has done all he can to ensure X engages with Ms D, but that she remains strongly resistant to doing so. Additionally he said X is infuriated and frustrated by her mother’s refusal to agree to allow X to travel to Country B in the near future. He said X’s attitude towards her mother has only hardened by the mother’s own recent trip to Country B in circumstances where the mother is withholding her consent for X to also travel there.
At this point, the mother says the only option available to ensure that X has a relationship with both of her parents, as she is entitled to have pursuant to the Act, is to take the significant step of changing X’s residence. Accordingly, the mother seeks orders that X live with her. To ensure that X settles in the mother’s care, she said there needs to be a moratorium on X’s time with her father, so that the transition can be undertaken smoothly, and without being undermined by the father and his family.
That application is not supported by the Independent Children’s Lawyer. It is opposed by the father. He seeks that the matter be brought to a conclusion at this stage.
The Independent Children’s Lawyer says, regrettably, the matter needs to be listed for a further final hearing, with an updated report from Mr C. The Independent Children’s Lawyer will also endeavour to have Ms D on affidavit.
Discussion
This is a difficult and challenging case.
This is an interim hearing, and short form reasons are permitted. I cannot make findings of fact, as the evidence has not been fully tested, although I note I have had the opportunity of hearing from both parties extensively under cross examination already. That was, of course, prior to the engagement of Ms D – and the parties are not in agreement as to how her engagement and involvement has progressed, or indeed, not progressed.
I note the full court’s observations in Banks (2015) FLC93-637 – where the court said if matters with respect to some s 60CC factors are determinative of the child’s best interests on an interim basis, it is unnecessary to explore the balance of the considerations.
I have identified the competing proposals, and the issues in dispute, as well as the agreed facts, although they are few. Much is in heated dispute.
In relation to s 60CC considerations, on an interim basis this matter turns primarily on:
(a)the benefit to X having a meaningful relationship with both of her parents;
(b)the risks to X inherent in the proposals advanced; and
(c)X’s views.
At a final hearing matters relevant to the other considerations will no doubt be ventilated, and findings made. That will likely include an assessment as to the capacity of each parent to appropriately meet X’s needs, and a consideration of the parties’ attitude to X and the responsibilities that come with parenthood.
I remain of the view, given the evidence of Mr C in particular, that X would significantly benefit from having a relationship with both of her parents. It is plain that whilst she remains in the care of the father, she will not have a meaningful relationship with her mother. However, I am also concerned about the strength of X’s views, particularly in light of her age, and the real risks that may flow if orders are made against her clear, consistent and deeply held views. She may abscond from the mother’s care. The mother lives in City E, and the father in Melbourne. As a 13 year old, trying to get from the mother’s home to the father’s could be very dangerous.
I also note I have no current evidence from a Court Child Expert as to the impact on X’s mental health, sense of security and sense of stability if she is removed from the father’s home, from her school and from her current social and cultural supports and placed in the mother’s home. This is a very significant decision, and I am most reluctant to impose such an enormous change on X without hearing further from a Court Child Expert as to the potential impacts on X if a change was to be implemented. Before considering moving X into her mother’s care, if that was to occur, I would also require expert evidence as to how that should be managed, and what supports X would likely require.
Having made those observations, I should also note that I have very significant concerns about the emotional impact on X as a result of her having no relationship with her mother. Mr C set out at length the emotional consequences likely to be experienced by X arising from her beliefs about being abandoned, and the potential long term impacts to X’s sense of self, understanding of her identity, and capacity to form close and loving bonds that may all flow from the failure of her parents to ensure she has the benefit of both of them meaningfully involved in her life. I remain concerned that the father simply does not really grasp the potential long term consequences X is likely to experience.
I accept the mother dearly loves X, dearly wishes to parent her, and believes she is well able to provide support and a loving home for her daughter. The mother was indeed quite articulate regarding how she would manage X who would likely be resistant and defiant in her care.
Taking all these matters into account, without the input of a Court Child Expert, I could not confidently be satisfied at this interim stage that X’s best interests will be met by placing her in the mother’s care and suspending all time with the father and his family.
Accordingly, I dismiss the mother’s Application in a Proceeding to change X’s residence. This is a matter that will need to be examined more fully at a final hearing, with a testing of evidence and updated information from the experts engaged.
Overseas travel application
In relation to the father’s application to travel to Country B, I was informed he wishes to travel there in early 2023 over the school holiday period. He plans to marry a woman there. The father’s family plan to accompany him on the trip. The father said, however, he would not travel to Country B if X was unable to travel with him, and would not leave X with any one and travel there himself.
In terms of the matters I must take into consideration, these are well articulated in cases commencing with the decision of Line & Line (1997) FLC 92-729.
Country B is not a signatory to the Hague Convention.
I am not sure whether the father owns real estate here, or whether he is employed here.
He wishes to marry an Country B woman. I do not know whether the woman is able to come to Australia. I do not know what other ties the father has to Country B. I note that in his affidavit filed 29 November 2022 the father said his father is in Country B and he wants to join his father and reunite with his extended family there. I am not sure whether the father is a Country B citizen.
The father did not depose to his travel plans, or the length of his intended stay. He provided no itinerary or draft itinerary. However, through his lawyer he said he would travel over the school holidays in January and return in time for the new school year.
Clearly the parties’ co-parenting relationship is extremely poor.
I accept that travelling to Country B would provide X with the opportunity to connect with her paternal family, her culture and heritage. The travel would enrich her sense of self and identity. If she cannot travel, she may further resent her mother.
However, I also note that the Department of Foreign Affairs and Trading (“DFAT”) have put out a travel warning regarding Country B. It is classified as a “Level 4: do not travel” destination. That is, Country B has been identified by DFAT as presenting a very high risk, beyond requiring travellers to exercise a high degree of caution and beyond advising travellers reconsider their need to travel.
In relation to a level 4 do not travel category, the smartraveller.gov.au website states:
At level 4, your health and safety are at extreme risk….If you travel to this location, you’re at a high risk of death, imprisonment, kidnapping or serious injury.
The website says further that if an Australian citizen gets into difficulties in a level 4 travel zone, the Australian Government may be unable to help, with extremely limited ability to provide consular assistance. The website says further that locations are only given a level 4 travel warning after a rigorous risk assessment, and that if a traveller elects to go to a level 4 travel zone, they need to have a robust risk management measure in place, including a detailed emergency plan. The father provided no evidence of any such plan.
In relation to Country B specifically, DFAT have identified that the security situation throughout the country remains volatile, that there are ongoing threats of kidnapping and any Australian citizens there should leave Country B immediately.
The areas around the L Region of Country B are described as presenting a very high risk of violence, armed conflict, kidnapping and terrorist attack. The father does not set out anywhere in his material where in Country B he wishes to travel.
Despite what might be a culturally rewarding and enriching trip, in light of the level 4 travel warning, I could not be satisfied on the evidence before me that it is in X’s best interests to travel to Country B. X may be infuriated by my determination, particularly as the mother appears to herself have recently travelled to Country B. However, in light of the clear, and strong government indication that Australians in Country B are at a high risk of serious harm the court clearly must act cautiously and protectively.
Accordingly, I dismiss the father’s application to travel to Country B, and X will remain on the Family Law Watchlist.
I will otherwise set the matter down for a final hearing, with an updated Family Report to be prepared, together with other procedural orders for the preparation of material.
Although I am setting the matter down for a final hearing, I note that X is now 13 years old. Given X’s age and level of opposition to having a relationship with her mother – for whatever reason – as a matter of practical reality the options available to the court are obviously limited. I will of course hear and determine the dispute if I am required to do so.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 7 December 2022
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