Sidkar and Amari

[2019] FamCA 417

FAMILY COURT OF AUSTRALIA

SIDKAR & AMARI [2019] FamCA 417

FAMILY LAW – PARENTING – Interim proceedings – parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sidkar

RESPONDENT: Mr Amari

FILE NUMBER: PAC 229 of 2019

DATE DELIVERED: 2 July 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 June 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Eggshell Skull

SOLICITOR FOR THE RESPONDENT: Baker Deane & Nutt

Orders

It is ordered, until further order that:

1. The Child, X, born … 2005, will live with the Father.

2. The Mother may have telephone communication with X if X expressly requests it, in which case X may either directly contact the Mother by telephone or video call or request the Father to organise a time with the Mother.

3. The Mother shall provide the Father with her mobile phone number, email address and video chat username to use for the purpose of Order 2 above.

4. Whilst the Mother is in Australia, X shall spend time with the Mother if X requests; the time, duration and venue shall be agreed between the parties with respect also to X’s wish.

5. The Mother is to provide the Father with three week’s written notice of her arrival in Australia, and that the Mother is to provide the Father with her travel itinerary, her place of residence and contact details whilst in Australia.

6. Each parent will ensure that the other parent is kept informed, as soon as is reasonably practicable, if X:

   (a)       Suffers a medical condition or serious illness while in their care;

   (b)       Is prescribed any medication while in their care;

   (c)       Becomes hospitalised while in their care;

   (d)       Is involved in an accident while in their care; and

   (e)       Of any other matter of relevance to the welfare of X.

7. Each parent shall keep the other informed of their respective places of residence and telephone contact numbers, and notification of change to be provided in writing as soon as reasonably practicable, and within 48 hours of such change.

8. Each parent shall provide the requisite consents and authorities required by any school of X to enable both parties to receive reports, school photographs or any other notices relating to X and to permit each parent to attend the school of X for the purposes of special events involving X and/or to speak to the teachers of X about X’s school performance.

9. Each parent shall do all acts and things to prevent X from being exposed to any drug or alcohol use whilst in the care of the parents.

10. Each parent is restrained from:

    (a)Denigrating the other parent or members of their family in the presence or hearing of X; and

    (b)Permitting any other person to denigrate the other parent or members of their family in the presence or hearing of X and shall immediately remove X from the hearing of any third party that denigrates the other or members of their family.      

11. The Mother is restrained from removing X from Australia.

12. If requested by the Father, the Mother is to do all things and sign all documents necessary to enable X to apply for and maintain a current visa or passport. 

13. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for X, born in 2005, and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

14. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

15. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as he or she considers relevant to the issues before the Court.

16. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

17. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

18. It is requested that a Family Consultant from the Canberra Registry of the Family Court of Australia prepare a wishes report in relation to any views that may be expressed by X, in particular about the living arrangements and time that he may spend with each of his parents, noting that nothing in these orders should be taken to compel X to express any view about these matters. 

19. In preparation for the wishes report it is directed that the Family Consultant may have access to the affidavit material on the Court file.

20. The costs of the proceedings are reserved.

21. The matter is listed for the hearing of the security for costs application on 16 August 2019 at 10am, for a period of two hours.

22. The Mother is to file and serve any response to the Father’s application for security for costs, and any affidavit material in support of such by 4.00pm on 23 July 2019.

23. The matter is further listed for directions, in light of the wishes report, on 4 November 2019 at 10am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sikdar & Amari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 229 of 2019

Ms Sidkar

Applicant

And

Mr Amari

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by Initiating Application on 17 January 2019 in the Federal Circuit Court of Australia.  On 19 March 2019 they were transferred from the Federal Circuit Court to the Family Court of Australia.  The proceedings involve the living arrangements for the child of the parties, X.

2. The circumstances, in general terms, are that the child of the relationship, X, who is now aged about 14 years old, has lived with the Father in Australia for an extended period.  He, the Father and the Mother, are all from Country C.  The Mother still lives in Country C.  The Mother alleges that X was taken from Country C without her consent and by means of the Father forging her signature.  The Father, however, alleges that the removal was with the Mother's consent, following her effective abandonment of X in 2014.

3. The overall contest is now as to whether or not X will live with his Father in Australia or with his Mother in Country C. 

4. However, the interim dispute is in much narrower terms.  By his Amended Response to an Initiating Application filed on 24 June 2019, the Father seeks a suite of interim orders.  The Mother agrees to all of those orders except for two, being orders that provide for the Father to have sole parental responsibility and orders that compel the Mother to cooperate in maintaining X’s passport and visa status.

5. The determination of these matters is to be considered in the context of interim proceedings in which the central contentions of the parties are unable to be resolved, and are to be determined on the basis of what is in X’s best interests.  The critical, and accepted circumstances for X are that he has been living with his Father in Australia for an extended period, and he has had almost no contact with his Mother for a number of years.

6. The agreement of the parties to the bulk of the suite of orders sought by the Father, which provide that X will live with his Father and will spend time with his Mother at his election are in the context of mutual allegations of risk.  The Father alleges that the Mother has neglected and abandoned X.  As the orders provide that X will live with the Father that risk is negated.  The Mother alleges that the Father has been abusive to herself and to X.  I am unable, on the limited evidence presented, to assess whether or not this forms a genuine and current risk.  The Mother's consent to these arrangements allays to a large degree the fears that the Father might pose a current risk to X.  Further, in the absence of the demonstration of a cogent and current risk and in the context of X living with the Father since 2014 (and now also with his stepmother) there is no real alternative available in the interim proceedings. 

7. The outstanding questions then relate to parental responsibility and the exercise of parental responsibility by the Mother regarding X’s passport and visa status.

8. There is at present no order in relation to parental responsibility.  That leaves each of the parties with all of the authority that goes with parental responsibility, unhindered by the obligations that would apply if an order for equally shared parental responsibility was made.  Normally the presumption that an order for equal shared parental responsibility is in X’s best interest would be applicable.  However, although untested at this interim stage, the allegations made by the Mother of family violence in this case render it inapplicable.  In any event in these interim proceedings, the presumption should not apply because of the fundamental nature of the factual disputes between the parties about X’s removal from Country C which is based upon as yet unresolvable facts.

9. The question arises as to whether or not the current position should be displaced by different orders.  The Father says he wants the security of an order for sole parental responsibility, although he identifies no particular reason (on the evidence) as to why it is necessary.  He alleges that it will be of assistance in dealing with migration issues but provides no direct evidence as to how, why, or to what extent this might be the case.

10. The Mother opposes the Father having sole parental responsibility in the context of her allegation that the Father improperly removed X to Australia.

11. It has not been demonstrated why it is in X’s interest to cut the Mother out of his long-term decision-making.

12. The current arrangement should not be displaced.  The Father is still able to make decisions, as is the Mother, although she will not be able to make decisions such as to remove X from the Father's care. 

13. The remaining issue relates to causing the Mother to cooperate in relation to maintaining X’s visa and passport status.  This is a matter that relates to stability for X.  All that is required of the Mother is that she apply for and maintain his current visa and passports.  While there is no evidence as to the likelihood of it being necessary for the Mother to cooperate, to the extent that this order preserves the current position pending final hearing, the order should be made.  This is because it will provide continuity of care and environment for X and stability of his current circumstances, while the broader issues are being determined.

14. The parties were in agreement that an Independent Children's Lawyer be appointed and that a report be prepared so that the Court might understand what X’s views are (noting of course he is not to be required to express any views in this matter). 

15. This leaves an outstanding matter of the Father's late application for security for costs.  The Mother has not yet had an opportunity to answer the Father's application and will be given a period of 21 days (I was advised that 14 days was sufficient) for her to make a response and file the necessary material.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered 2 July 2019.

Associate:

Date:  2 July 2019