Sharif & Yamin (No 2)
[2023] FedCFamC1F 539
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sharif & Yamin (No 2) [2023] FedCFamC1F 539
File number(s): MLC 1030 of 2012 Judgment of: CARTER J Date of judgment: 9 June 2023 Catchwords: FAMILY LAW – CHILD – protracted litigation – where the child opposes having a relationship with the mother – where the parties have partially settled on a final basis – where there is disagreement as to whether the child should attend non-reportable psychological counselling – where child is not ordered to seek non-reportable psychological counselling – orders made. Division: Division 1 First Instance Number of paragraphs: 35 Date of last submission/s: 8 June 2023 Place: Melbourne Counsel for the Applicant: Ms Metherell Solicitor for the Applicant: Leslie Family Law Solicitor for the Respondent: Bramham Lawyers Counsel for the Independent Children's Lawyer: Ms 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: MR SHARIF
Applicant
AND: MS YAMIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CARTER J
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
Airport Watch List Removal
1.THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child X born 2009, from the Airport Watch List at all points of international arrivals and departures in Australia.
Applications Dismissed
2.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
THE COURT ORDERS BY CONSENT THAT:
3.All previous parenting orders be discharged.
4.The parties have equal shared parental responsibility for the child X born 2009, including but not limited to decision in relation to:
(a)X’s health and treatment;
(a)X’s education;
(b)X’s travel outside of Australia; and
(c)X’s living arrangements.
5.The parties be permitted to communicate with one another in relation to parenting matters, including in the exercise of their shared parental responsibility, and the following shall apply:
(a)communications are to be via email, save in the event of an emergency when they may be via telephone;
(b)reasonable email communications from the other party must be responded to within 72 hours;
(c)all communications must be courteous and respectful, and must not be harassing, critical, or abusive of the other parent or their family; and
(d)the parties are to keep each other advised of their email address and contact telephone number, and shall advise the other parent within 24 hours of any change to those contact details.
Living and spend-time arrangements
6.X live with the father.
7.X spend time and communicate with the mother in accordance with her wishes
8.The mother be permitted to send cards, letters and gifts via registered post to X:
(a)at each of the following occasions:
(i)X’s birthday;
(ii)Eid Al-Fitr;
(iii)Eid Al-Adha; and
(b)additionally, on no less than one occasion per calendar month.
9.Upon receipt of any card, letter, and/or gift sent to X by the mother in accordance with the preceding Order, the father shall forthwith do all things necessary to ensure that:
(a)the card, letter, and/or gift is conveyed to X as soon as practicable; and
(b)X is afforded privacy to consider the card, letter, and/or gift.
10.For the purposes of these orders, the father shall provide the mother with a residential or PO Box address at which cards, letters, and gifts from the mother can be received, and shall keep the mother updated via email within 24 hours of any change to that address.
11.In the event X expresses to the parties or either of them a wish to communicate, spend time with or contact the mother, the parties shall do all things necessary to:
(a)advise the other as soon as practicable of X’s request; and
(b)facilitate X’s request.
Travel outside of Australia
12.The parties do all things and sign all necessary documents to obtain an Australian Passport for X.
13.Pursuant to section 67ZD of the Family Law Act 1975 (Cth), upon a passport or other Australian travel document (within the meaning of the Australian Passports Act 2005 (Cth) issuing in relation to X, the parties deliver up to the Registrar of the Federal Circuit and Family Court of Australia (“Court”) all such travel documents to be stored by the Court and released only in accordance with these orders.
14.The parties each be at liberty to travel internationally with X upon satisfaction of the following conditions:
(a)the travelling party shall provide the non-travelling party with 56 days’ written notice of their intention to travel;
(b)no later than 56 days prior to the proposed travel, the travelling party shall provide the non-travelling party with the following:
(i)a complete itinerary of all travel outside Australia including details and dates of proposal travel, flights, dates of departure and return, the countries into which travel is intended, intended destinations (cities / towns / etc.);
(ii)written confirmation of contact details on which X will be contactable for the duration of the travel; and
(iii)a copy of the return airline tickets to be used by the travelling party and X to return to Australia (with the travelling party to keep the non-travelling party updated with further copies of tickets as soon as practicable in the event flight arrangements change).
15.Upon a party providing documentary evidence of compliance with the conditions set out in Orders 14(a) and 14(b), and providing that the non-travelling party has not filed any Application with this Court to oppose the proposed international travel, X’s passport shall be released by the Court to the travelling party.
16.Upon X’s return to the Commonwealth of Australia in accordance with these orders, the travelling party shall do all things and sign all necessary documents to deliver X’s passport to the Court within seven days of X’s return and shall provide documentary evidence of same to the non-travelling party within ten days of X’s return.
17.The parties be and are hereby restrained by injunction from instigating, causing, facilitating, assisting, abetting in or permitting any marriage of X to another person in accordance with any international or religious law, prior to X reaching the age of 18, either in Australia or overseas.
18.During any period of international travel in accordance with these orders, the travelling party shall facilitate X speaking to the non-travelling parent via WhatsApp or such other form of telephonic / electronic communication on at least one occasion per week, subject to X’s wishes.
19.In the event either party travels with X in accordance with these orders and fails to return X to the Commonwealth of Australia within 14 days of the date specified in the itinerary provided to the non-travelling party, the travelling party shall be liable for:
(a)payment of all travel expenses necessary for the non-travelling party and X, to cause X to be returned to the Commonwealth of Australia; and
(b)payment of any legal fees reasonably incurred by the non-travelling party to cause X to be returned to the Commonwealth of Australia.
20.In the event of any medical emergency, flight delays, flight cancellations or any other emergency or issue which is beyond the control of the party travelling internationally with X in accordance with these orders, a 14-day extension for the return of the travelling party and X to Australia shall be granted, and during such extension Orders 19(a) and 19(b) shall not apply, provided that:
(a)the travelling party notifies the non-travelling party as soon as practicable in writing of the reason for the delay in their return to Australia;
(b)the travelling party provides to the non-travelling party, all documentary evidence that is available to substantiate the reason for the delay in their return (i.e.; medical certificates, correspondence from airlines, etc.); and
(c)the travelling party, at all times during the extension, keeps the non-travelling party updated and apprised of developments pertaining to the delay, as well as the updated estimate return date to Australia.
ICL Meeting
21.Within seven days of the date of these orders, the father shall deliver X to the office of the Independent Children’s Lawyer at a time and date nominated by the Independent Children’s Lawyer for a meeting with the Independent Children’s Lawyer and Court Child Expert Mr C (“ICL Meeting”).
22.At the ICL Meeting, the Independent Children’s Lawyer and Court Child Expert Mr C are requested to explain to X:
(a)the terms of these orders, including but not limited to the requirements they impose on the father;
(b)the decision of the Mother not to pursue Orders requiring X to live and/or spend in-person time with her, other than in accordance with her wishes; and
(c)any other matter or fact they consider will promote X enjoying meaningful relationships with both of her parents in the future.
Other matters
23.Within 14 days of the date of these orders, the father shall email the mother a list of all of X’s current treating medical practitioners, and shall authorise each of those practitioners to liaise with the Mother in relation to X.
24.Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
25.The parties be permitted to attend all school events relating to X that are normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
26.The parties be permitted to provide a copy of these Final Orders to each of X’s treating medical practitioners and X’s school.
27.The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and from permitting any other person to do so.
28.In the event of non-compliance with these Final Orders by either of the parties, the Independent Children’s Lawyer (and following her discharge, the parties) shall have liberty to contact the Chambers of Justice Carter to seek to have the matter relisted for Mention on a date convenient to the Court.
29.The Order for the appointment of the Independent Children’s Lawyer be discharged on 30 December 2023.
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.
B.In agreeing to these orders, the mother:
(i)recognises that X has expressed a longstanding and intensifying wish to the Court to not compel her to spend time or communicate with her mother;
(ii)respects and hereby accepts X’s expressed wishes; and
will continue to do all things necessary in accordance with these Orders to demonstrate to X that she will always be available to X in the future, to share a meaningful relationship with X, when X is ready.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUSTICE CARTER
This is a very sad case. It concerns X, who was born 2009. She is almost 14 years old. She lives with her father. Unfortunately, her relationship with her mother is fractured. Indeed, X has apparently entirely rejected her mother and refuses to spend any time with her. Many efforts have been made over a number of years to try and repair the mother-daughter relationship, but those efforts have been, regrettably, futile. The mother has now made the very difficult decision to abandon her application for a change of residence and instead she consents to final orders that X will live with her father.
To their credit, the parties have been able to reach an agreement on a number of matters, and that includes that there should be orders for equal shared parental responsibility. They have also agreed to orders providing for X to spend time and communicate with her mother in accordance with her wishes. The proposed consent orders further provide that the mother is permitted to send cards, letters and gifts to X, including on special occasions, and the father is to ensure that those are provided to X and she be given privacy to consider those communications and gifts. Additionally, the parties have agreed that X’s passport will be obtained, and they agree further to orders that provide for overseas travel on certain conditions being met, with X’s passport to be delivered by the father to the Melbourne Registry of the Court and held there when she is in Australia. X is currently on the Airport Watch List, but the parties have all told me that she should be removed from that list.
What the parties have not been able to agree on, however, is whether or not there should be an order requiring X to attend a non-reportable psychological counselling at the joint expense of the parties. That is sought by the mother and opposed by the father. The Independent Children’s Lawyer acknowledges the very likely significant benefits that would flow to X if she engaged with a counsellor. However, the Independent Children’s Lawyer does not support the orders being in terms as sought by the mother. This is substantially on the basis it seems unlikely X will engage meaningfully with that process and any noncompliance could further extend the conflict between the parties by the matter returning to Court for contraventions.
This matter has a long and complex history, much of which I set out in the reasons for judgment that I delivered on 7 December 2022 in relation to an interim hearing. There is no need for me to repeat that detailed history here, beyond noting that X has lived with her father since late 2013. Since that time there has been no meaningful relationship or contact between X and her mother. As observed in my earlier reasons, 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 it is X who does not want to have a relationship with the mother. He said X feels that she has been abandoned by her mother and wants nothing to do with her. Conversely, the mother says that she has done all she can to pursue a relationship with her daughter but every attempt to do so is scuppered by the father or various members of the paternal father.
I have had the benefit of hearing extensive evidence from the parties whilst this matter was before me in the Federal Circuit and Family Court of Australia Division 2, and I continued carriage of this matter following the matter being transferred to the Federal Circuit Court and Family Court of Australia Division 1. Whilst not all of the evidence has been tested, I formed a view that X’s rejection of her mother substantially has its genesis in the extremely negative attitude that the father and the paternal family have of the mother. It seems overwhelmingly likely that X has been encouraged and rewarded for refusing to engage with the mother, and that no meaningful steps have been taken in the father’s household to give X explicit permission to repair the mother-daughter relationship. In those circumstances X remains implacably opposed to spending time or communicating with the mother. I know that I have not heard further evidence from the parties since the matter was transferred to this Court, and these are not definitive findings. However, having heard what evidence I have heard, and having read further evidence from the parties and professionals more recently, that seems to be the likely situation.
Of course, the mother also has contributed to this situation. She relinquished X’s care to the father when she was very young and then seemingly took somewhat limited steps to regain connection to X for a protracted period.
Many attempts have been made to foster the mother-daughter relationship following the mother issuing these proceedings in 2018. Interim orders at the time were not complied with. Attempts were made for there to be professionally supervised time, which, again, was not successful. The father did not enrol X with the professional supervisors for a protracted period of time, and X subsequently refused to attend.
There were further attempts to facilitate time using family members and members of the parents’ community. Each attempt has been similarly unsuccessful. In 2020 family therapy was attempted with the assistance of Mr J. That too failed, with the father being tardy in making appointments and complaining that Mr J asked cultural insensitive questions of X on the two or three occasions that she attended.
Further attempts were made in 2022 with Ms D, an accredited mental health worker, to provide restorative family therapy to X and her mother. Whilst that appeared to be progressing, slowly, that approach also broke down. It was asserted again by the father that he had done all he could to encourage X to contact her mother and to engage with Ms D, but that X simply refused to do so.
Mr C has interviewed X on a number of occasions for the preparations of his Family Reports. He reported that X maintains at all times that she does not want a relationship with her mother. In the most recent Family Report, Mr C has strongly recommended against a change in residence but remained very concerned for X’s wellbeing in her father’s care. He described X as being:
…embedded in a rigid and unwaveringly negative environment, where any kind of relationship with [the mother] is not supported and possibly discouraged as well.
The father is well aware of the likely long-term consequences for X if she remains estranged from her mother. These have been set out by Mr C, and include:
(a)the emotional consequences likely to be experienced by X arising from her beliefs about being abandoned; and
(b)the potential long-term impacts to X’s sense of self, understanding of her own identity and capacity to form close and loving bonds.
In his most recent report, Mr C endorsed Ms D’s concerns about the long-term detrimental impact of alienation as including internalised self-hate, distant and conflicted relationships with others and the potential in the long-term of becoming alienated from one’s own children.
It does not appear from the way that the father has conducted his case that he fully grasped the risks outlined by the Family Consultant and the family therapist regarding X’s long-term wellbeing if she remains estranged from her mother.
The mother is to be commended for making the difficult but child-focused decision at this stage to agree to X remaining living with her father. It does mean that X is unlikely to have the benefit of a meaningful relationship with her mother and her half siblings that live in the mother’s household, but it also means that these proceedings can be brought to an end. They have been on foot since 2018, and the opportunity for Court ordered attempts at reunification have now been exhausted.
The mother acknowledges that, but she seeks an order that the father ensure X engage with a psychologist for the purpose of non-reportable counselling. That is not family therapy. It is not for the purposes of reintroducing the mother to X. It is sought on the basis that given the difficulties X has experienced, and the feelings she may have, for instance, of believing she was rejected, and that she has been central to a hostile dispute in this Court for a protracted period or for any other issues that may concern her, X should have a safe and supportive space to explore those issues.
As indicated, that is opposed by the father and the Independent Children’s Lawyer.
Regrettably, in all the circumstances, it does not appear to me that there is any real utility in making an order for X to attend upon a psychologist and I am not satisfied that an order to that effect is be in her best interests.
Firstly, I am not satisfied that the father has any insight into the likely benefits X would experience were she to engage meaningfully with a mental health practitioner; rather, he appears to regard counselling as inconvenient and unnecessary. He says X is resistant and does not want to go. It is, in my view, most likely the father’s negative views of counselling would be apparent to X and I anticipate the father will not positively encourage or endorse X’s appearance upon any mental health practitioner to her. That is likely to result in X’s refusal to attend and, indeed, she may be angry or annoyed if she is required to do so.
Secondly, even if the father genuinely encouraged X to attend, I anticipate she will still be resistant to doing so. To an extent, that may be understandable. She has been required to attend upon a number of professionals over the years. She has attended upon two different Family Consultants, as well as having been engaged in unsuccessful attempts at family therapy with two different counsellors. She has also been interviewed by the Independent Children’s Lawyer which, at least on one occasion, she behaved in an uncontained and destructive manner. The order sought by the mother would, of course, require X to attend upon another professional.
I understand X does not regard it as necessary that that she have counselling. I anticipate she does not think that there is anything ‘wrong’ with her. Of course, the psychological attendance envisaged by the mother is not proposed on the basis that there is anything ‘wrong’ with X, but, rather, to provide her with a safe, supportive and independent space in which she can explore any matters that are worrying or confusing for her. However, given the history of the matter, I expect X will regard her attendance upon a psychologist as an unnecessary intrusion into her day-to-day life, at the mother’s insistence. She told Mr C at the most recent Family Report interview that she hates her mother and wants to stop her from being involved in her life. Accordingly, an order requiring X to attend counselling is likely, in my view, to be counterproductive and further fuel X’s negative narrative regarding her mother and the mother’s involvement in her life.
Even were the father to encourage X to attend, I anticipate there would likely be difficulties in the father’s home in trying to get X physically to attend the psychologist. I note that Mr C said X has “reached a level of cognitive development where she will not acquiesce unquestionably to adult authority or, more specifically, of the authority of the Court”.
Moreover, even if X did physically attend the counselling, I do not anticipate, given the history of the matter, that she would engage with a psychologist in any meaningful way. She has not engaged meaningfully with any of the professionals engaged so far. It is difficult to see the utility in requiring X to attend a psychologist if there is no real prospect that she will meaningful engage with that professional.
Lastly, if I were to order, as sought by the mother and there is noncompliance with that order, the matter would likely return to Court. I note Ms Metherell’s submission that if that occurred and the father was subsequently found by the Court to have contravened the order and dealt with for doing so, that could send to him a powerful message regarding the Court’s authority.
I do share Ms Metherell’s concerns that the father has demonstrated on a number of occasions disregard for the authority of this Court and indifference for its orders. However, I am more concerned with the impact on X if contravention proceedings were to eventuate and the matter once more returned to Court.
It is, in my view, more powerfully in X’s best interests that proceedings come to a conclusion and that efforts be made to avoid further proceedings. I am also concerned that if the father was dealt with for contravening an order, that could further serve to cement X’s hostile attitude towards her mother.
It is with considerable regret that I must conclude that X’s best interests are served by not making the order for psychological support as sought by the mother.
It would, in my view, be extremely beneficial for X to meaningfully engage with mental health supports. She clearly continues to labour under a belief that she was abandoned by her mother and these matters could be explored by X in a supportive, safe and non-reportable environment. However, X needs to be of the view that such assistance would be beneficial to her or there is little to be gained.
For these reasons, I am not going to make the order as sought by the mother in relation to the counselling.
The parties have agreed that the Independent Children’s Lawyer and Mr C will explain these orders to X. That is, in my view, very important as they will, no doubt, convey to her that these orders in no way represent that the mother is rejecting X. Rather, the orders indicate the mother’s child-focused – but very difficult – decision that she has made to respect X’s views and bring these proceedings to a conclusion. I anticipate it will be made clear to X that the mother loves her very much and still hopes in the future that their relationship can be repaired.
The parties have also agreed for X to be removed from the Airport Watch List and for orders regarding overseas travel. In light of that agreement I will make orders for that. In relation to the Airport Watch List order, that will be expressed as a Court order, rather than a consent order.
In relation to the orders for overseas travel, I note that on an interim basis I had previously declined to make orders permitting X to travel to Country B. The parties’ proposed orders for overseas travel are not detailed, and travel is not limited to countries which have implemented the Hague Convention on the Civil Aspects of Child Abduction. Nor is the travel to be limited to countries for which the Australian Government has not issued an alert. I specifically raised those issues with counsel for the mother yesterday who confirmed that was the agreement.
Again, in circumstances where the parties have reached an agreement as to those matters with the support of the Independent Children’s Lawyer I am content to make the orders.
I do remain concerned for X. I hope that she thrives in the father’s care when these proceedings come to an end and that at some point in the future she can find a way to reconnect with her mother. For now, at least, she can concentrate on being a teenager without the constant stress and worry about the outcome of these proceedings.
For these reasons, I am satisfied that the orders sought by consent are in X’s best interests and I will make the orders by consent of the minute that was provided to Court yesterday with the small amendments that were discussed in the Court yesterday regarding the clauses on overseas travel.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of ex tempore Reasons for Judgment of the Honourable Justice Carter delivered on 9 June 2023. Associate:
Dated: 9 June 2023
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