Sukuraman and Kemal

[2016] FamCA 1149

FAMILY COURT OF AUSTRALIA

SUKURAMAN & KEMAL [2016] FamCA 1149

FAMILY LAW – CHILDREN – Interim Orders – Where the mother seeks to travel with the child to Country E for one month – Where the mother wishes to permanently relocate with the child to Country E – Where the mother is seeking an order the child spend no time with the father – Where the father is seeking an order the child spend substantial time with him – Where the final hearing is expedited – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Sukuraman

RESPONDENT: Mr Kemal

INDEPENDENT CHILDREN’S LAWYER: C M Bint

FILE NUMBER: BRC 4849 of 2014

DATE DELIVERED: 4 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 4 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper

Cooper Family Law

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bint

C M Bint Family Lawyers

Orders

1. The final hearing of the competing final orders applications in this matter be expedited with the matter to be allocated to a judicial docket and given a trial management hearing as soon as possible.

2. (a)      Each of MS SUKURAMAN born … 1985 and MR KEMAL born … 1982 be restrained and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of D born … 2011 (male) from the Commonwealth of Australia.

   (b)D be and is hereby restrained from leaving the Commonwealth of Australia.

3. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the final orders in the substantive parenting orders proceedings or earlier discharge by the Court.

4. The father shall sign all documents presented to him by the mother’s solicitors necessary for the issue by the Australian Government of a passport for the said child as soon as such documents are provided to them.

5. The Application in a Case filed 21 March 2016 is otherwise dismissed. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4849 of 2014

Ms Sukuraman

Applicant

And

Mr Kemal

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is a parenting matter between the mother and father of a little boy, who I understand is four years of age.  In short, the parties are both of Country E ethnicity.  The father was living in Australia and through the agency of his parents and the mother’s parents, at a time when the mother and her family were living in Country E, and the father’s parents were living in Country E, the two were introduced with a view to marrying.  Some might describe this as an agreed, arranged marriage.

2. The mother and father got to know each other in the first instance in Country E over a few months and, to the best of my understanding of the evidence I have read, their agreement to marry remained in place after they got to know each other.  They married in Country E and the father returned to Australia briefly before being followed by the mother.  Not long after they married and were living in Australia, the mother became pregnant with their son. 

3. On the mother’s case, one might say the parties experienced unhappy differences from effectively the moment she arrived.   She asserts that pre-marriage representations that were made to her by the father about his circumstances in Australia were largely false, and when she arrived in Australia unhappy differences emerged immediately between the two of them, not the least of which, she says, was his controlling, verbally abusive and physically violent manner.  From what I have read the father at least agrees that sometime after the birth of the child, unhappy differences arose as between him and the mother. 

4. Sometime in or before 2014 the mother left the premises that she and the father shared as their family home and took the child with her, as I understand it.  She did that, at least from the father’s perspective, without his knowledge in advance that it was going to happen.  Shortly thereafter, in factual circumstances that are not entirely clear to the Court today, nor do they need to be, the father at least asserts that he cancelled or caused to be cancelled the passport that existed for their child, not knowing where the mother and child were and caused the child to be placed on what we call the Airport Watchlist maintained by the Australian Federal Police at points of departure around the country. 

5. The proceedings were commenced in 2014, they remain pending in this Court where final orders are sought by each parent which include as the main issue the question of international relocation.  Simply put, the mother seeks to return to live in Country E with her family on a permanent basis.  She asks the Court for an order that she be permitted to remove their child to live with her in Country E on a permanent basis.  As an adjunct, she asks for an order that the child spend no time with the father in the future.  The reasons for that do not need to be gone into today. 

6. The father seeks orders from the Court that of course the child spends time with him.  It seems as the respective cases of the parties are currently presented, that the mother, who seeks an order that she be allowed to take the child with her to Country E and that the child not spend any more time with the father in the future, nevertheless says that if she is not permitted to take the child she is going to go anyway and that he can be thereafter raised in Australia by his father.  Simply put, the competing positions of the parties are stark and it is an “all or nothing” case.

7. Whilst the matter remains pending and before it has been allocated to a judicial docket under our current case management system, the mother has filed an Application in a Case in which she is seeking orders to be permitted to remove the child to Country E for up to one month.  Her case for that order is based on her evidence that her mother is quite unwell in Country E and with the prognosis not being great and she wants to be able to go and visit her mother whilst she is unwell and before anything worse happens or her mother’s condition deteriorates. 

8. There is an Independent Children’s Lawyer in the case.  The Independent Children’s Lawyer has told the Court this morning that the Application in a Case for an interim removal of the child to Country E is opposed.  The father also opposes that application. 

9. Being conscious of the fact that the mother’s application is for permanent removal to Country E and that her case is coupled with an assertion that she will go whether she is allowed to take the child or not, I quickly considered that there is a need to hear and determine the substantive part of this case as quickly as can possibly be achieved given the demands on this Court’s judicial resources.  Each of the parties agrees with that approach.  In the circumstances, and in a way the Court expresses appreciation for, the mother, through her experienced family law solicitor, Mr Cooper, informed the Court this morning that if an early trial of the substantive final issues is able to be achieved, she would not press her Application in a Case to leave the country today. 

10. With a brief adjournment and consultation with the Judicial Services Team Leader responsible for working with me as case management judge for the determination of the way the listings are dealt with, at least up to when they are allocated to a judicial docket, I was able to ascertain that the matter can be heard as late as July, but potentially either in late June or even late May by one of my judicial colleagues.  All that said, I am satisfied that priority needs to be given to the final hearing of this matter and order accordingly. 

11. I wanted to give some brief reasons to acknowledge and recognise that the orders I am making this morning are not really made by consent but are not in any way seriously opposed or actually opposed by the mother short of consent being offered.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 4 April 2016.

Associate: 

Date:  23 January 2017