Shehata & Hasem
[2022] FedCFamC2F 487
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shehata & Hasem [2022] FedCFamC2F 487
File number(s): PAC 4575 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 6 April 2022 Catchwords: FAMILY LAW – Interim parenting – international travel – sole parental responsibility to obtain a passport for child – no cogent evidence that mother is a flight risk – father maliciously and unreasonably withholding consent –allegations of family violence – mother allowed to obtain passport and travel internationally with the child without father’s consent. Legislation: Family Law Act 1975 (Cth) ss.69Z, 69ZL Division: Division 2 Family Law Number of paragraphs: 19 Date of hearing: 6 April 2022 Place: Parramatta Appearing for the Applicant: Ms Sowaid Solicitors for the Applicant: Choice Law Group Appearing for the Respondent: Ms Makdo Solicitors for the Respondent: Makdo Family Lawyers & Associates Appearing for the Independent Children’s Lawyer: Ms Wilkins Solicitors for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 4575 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SHEHATA
Applicant
AND: MS HASEM
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
6 APRIL 2022
THE COURT ORDERS THAT:
1.The mother is granted leave to rely on her affidavit filed 11 November 2021 and 1 April 2022.
2.The father is granted leave to rely on his affidavit filed 31 August 2021 and 5 April 2022.
THE COURT FURTHER ORDERS THAT:
3.X born in 2016 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born in 2016. The mother shall be the only person with ‘parental responsibility’ of the child X born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2016.
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 Shehata & Hasem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)JUDGE OBRADOVIC:
These are short form reasons delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).
Before the Court today is an application by the mother to travel internationally with the only child of the parties’ relationship. The respondent father opposes the orders sought by the mother.
The parties have one child together, X, born in 2016. X is currently five years and eight months old. He lives with his mother and his sister, Y, born in 2009.
The parties participated in an Islamic marriage ceremony in 2012, and the marriage was certified in Country B through the Australian Embassy in 2013. The parties have been separated since about March 2017. It is agreed between the parties that the father has not spent any time with X since about mid-2017.
Having regard to the four affidavits which have been read in the proceedings – that is, the father’s affidavits filed on 31 August 2021 and his second affidavit filed on 5 April 2021, the mother’s two affidavits filed on 11 November 2021 and 1 April 2022 – there is absolutely no cogent evidence before this Court that the mother is a flight risk. The mother is an Australian citizen, and has been living in Australia since 2014. She has two children, one being the child of the parties’ relationship, and each of the children is well settled in the country. X has lived in Australia his entire life. Both of the children are Australian citizens, and there is no evidence that the subject child, X, holds citizenship or is entitled to hold citizenship of any other country.
The mother’s mother, the maternal grandmother, is ill with cancer, and on the evidence, that cancer appears to be terminal. The last time the mother and X spent time with the maternal grandmother was in 2017, when the maternal grandmother travelled to Australia and stayed with the parties. The mother has not spent any time with her extended family since her move to Australia in 2014, a period of some six years.
There is, however, cogent evidence that the father is a violent man, and that he has perpetrated family violence upon the mother, and in the presence of the two children, X and Y. The father was arrested, charged, and convicted of assault occasioning actual bodily harm, domestic violence, related to an incident that occurred on 10 June 2017, contravene prohibition or restriction in apprehended domestic violence order in relation to an incident that occurred on 10 June 2017, and aggravated break and enter with intent in relation to an incident that occurred on 10 June 2017.
The details of the incident on 10 June are set out in the facts sheet attached to the Court Attendance Notice annexed to the father’s affidavit filed on 30 August 2021, and they are part of the evidence in his case. Those details are as follows:
(a)At about 1.50 am on Saturday, 10 June 2017, the mother was inside her home with the two children, Y and X, who were asleep upstairs. The mother heard the front gate open loudly, and she then heard the front aluminium flyscreen door open, and the father start banging on the front wooden door. He started yelling, “Open the door, open the door.” The mother said, from inside the closed and locked front door, “Go away. You are not allowed to come in.”
(b)The father kept banging on the front door. The mother found her mobile and attempted to call triple zero. The mother walked from the lounge room upstairs, to close the children’s bedroom doors, and she then walked back downstairs saw the front glass panel smash open and the father’s hand reach inside and open the front door. The father walked from the front door and followed the mother, who ran into the kitchen. She attempted to call triple zero again. The father took hold of the mother’s throat with both of his hands and started squeezing her throat. The father then let go of the mother’s throat and started punching her to face, and kneeing and elbowing her. The force of the punches caused the mother immediate pain to her face and her nose. The father then pushed the mother away and started yelling, “I’m going to kill you. I’m going to kill you.”
(c)The mother found her phone and tried to call triple zero while being chased around the kitchen. The father took hold of the mother’s mobile phone and pulled it out of her hands. The mother, in fear for her life, ran from the villa and started banging on the door of villa number 5, begging for help. She yelled, “Someone call the police. He’s going to kill me.” The father chased the mother around the villa driveway for a few minutes before walking to his motor vehicle and driving away. On hearing the mother’s screaming, triple zero received multiple calls of a woman screaming for help and a male yelling.
(d)At around 2.10 am on Saturday, 10 June 2017, the police attended the villa complex, which is located at Suburb C, where the mother and the children lived. The police located the mother screaming and crying in the driveway and holding her youngest child. The police observed the mother’s face to be bloodied and her eyes to be swollen. The police attempted to calm the mother with several neighbours who came out of their villas. The police walked to the front door of the mother’s home and observed that the front glass panel was shattered and there was glass on the floor inside the front door on the carpet.
(e)At around 7.30 on Sunday, 11 June 2017, the mother contacted the police inquiring whether the father had been located by the police, indicating that she was afraid to return home. She informed the police that she believed the father may have fled the country to Country B and that she feared for the safety of her mother and her father who were overseas. The police immediately contacted Border Force by email to make further inquiries regarding whether the father had travelled overseas. Police received an email from Border Force which showed that the father had departed August on 10 June 2017 from Melbourne to Country D. At the time, the father’s final destination was unknown.
(f)The police were of the opinion that the father had deliberately left Australia in an attempt to avoid apprehension for the offences against the mother. The police applied for a warrant, as they had exhausted all other measures to locate the father, and for that warrant to place him before the Courts.
The father was arrested upon his return to Australia. He spent five months in custody on remand, and then a further 14 months on bail. He was found guilty of each of the charges and sentenced to 21 months’ imprisonment. He was released from jail on 10 October 2020, subject to a six month parole period.
Section 69Z of the Act makes it an offence for a person who is a party to Part VII (of the Act) proceedings – which these are – to take a child outside of Australia without the consent in writing of the other party to the proceedings, in circumstances where proceedings are pending for the making of an order to which subdivision E of Division 6, Part VII, applies. The legislation preventing overseas travel for parents without consent in this instance, and in many other instances which come before the Court, appears to indirectly discriminate against women.
In this instance, why should a woman who has been strangled and beaten have to ask for the abuser’s consent to travel overseas with her children? Why does an abusive man have the benefit of legislation which allows him to further control and coerce his victim?
It is astounding that in 2022, women still do not have freedoms: why does the woman have to seek the man’s consent to have the freedom to travel? And it is the permission of a man who is no longer a part of her life; indeed as if there ever was a reason for having to seek his permission.
This is not about the mother being a flight risk. This is about abuse and control. The legislation inadvertently permits it in this instance.
While clearly not meant to operate in this way, the legislation speaks of consent in writing. It is meant to operate protectively, which is why there are exceptions to the offence provisions in circumstances of family violence.
The father, in this instance, the Court finds, is withholding consent unreasonably and likely maliciously. It speaks volumes of the cycle of coercion and control, when the mother is proposing that she travel to a Hague Convention country, perhaps in part, to appease the father. Both of these parties are Country B and are originally from Country B. This is where the mother’s extended family is.
There is absolutely no reason in the circumstances of this case, and on the evidence before the Court, as to why the mother should be restricted from visiting her family in a manner that she deems most appropriate, where there is no cogent evidence that she is a flight risk.
In circumstances where this is a no costs jurisdiction and where the parties are legally aided – certainly, where the father is legally aided, it is difficult to see what disincentive there could be to such unreasonable and possibly malicious resistance being offered, as has been the case here, to an application which, really, should be consented to.
Orders will therefore be made permitting the mother to travel overseas with X, without the consent of the father being required for X’s passport for international travel. The mother will not be restricted in terms of where she is to travel. As noted, there is no evidence she is a flight risk.
I therefore make the above orders.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 11 May 2022
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