Tamraz and Sargis and Ors

[2019] FamCA 1048

FAMILY COURT OF AUSTRALIA

TAMRAZ & SARGIS AND ORS [2019] FamCA 1048

FAMILY LAW – CHILDREN – Interim Parenting – Ex Parte Orders – Where proceedings initiated by a child – Where applicant child understands the nature and possible consequences of the case and is capable of conducting the case without a case guardian – Department of Communities and Justice invited to intervene in the proceedings.

Family Law Rules 2004 (Cth) rr 5.12, 6.02, 6.08

APPLICANT: X Tamraz

1st RESPONDENT: Ms Sargis

2nd RESPONDENT: Mr Tamraz

3rd RESPONDENT: Mr B Tamraz

INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

FILE NUMBER: PAC 2677 of 2019

DATE DELIVERED: 10 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 29 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Parramatta Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders

1. For the purpose of this Application I am satisfied that the Applicant child understands the nature and possible consequences of the case and is capable of conducting the case.  The need for the case guardian is therefore dispensed with.

2. Leave is granted to the Applicant to rely on the additional document marked Exhibit A in today’s proceedings which sets out the final orders sought by the Applicant.

3. Leave is granted for a subpoena to issue to the Department of Immigration or other relevant Department in relation to the immigration status of the children X Tamraz and Y Tamraz (“the children”) born … 2002.

4. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

5. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.

6. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

7. That until further order each party, Ms Sargis, Mr Tamraz and Mr B Tamraz and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children X Tamraz a female born … 2002 and Y Tamraz a female born … 2002, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watch List until the Court orders its removal.

8. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.  

9. A relevant employee of F Services is requested to provide an affidavit in respect to the services provided to the children and in the event that an employee of the service is not prepared to provide affidavit then the Applicant has leave to issue a subpoena to that service.

10. The Independent Children’s Lawyer has leave to issue subpoena to the children’s school and any other agency the Independent Children’s Lawyer regards appropriate in respect to the children.

11. Pursuant to s 69ZW(1) of the Family Law Act 1975 the Court orders and directs the Department of Family and Community Services (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Regulations) to provide to this Court by  all documents and information held by them about one or more of the following:

    (a)       Any notification to the agency of suspected abuse of the children ;

    (b)       Any notification of suspected family violence affecting the children;

    (c)       Any assessment by the agency of investigations into a notification or suspected abuse or family violence and/or the findings and outcomes of those investigations;

    (d)       Any reports commissioned by the agency in the course of investigating a notification;

12. That material produced to the Court pursuant to any order under s 69ZW of the Family Law Act 1975 is to be produced to the Chambers of Justice Hannam and will thereafter be held in the subpoena and exhibits section of the Parramatta Registry of the Family Court of Australia and the legal representatives for the parties, any self-represented party and any Independent Children’s Lawyer or report writer appointed pursuant to s 62G or Chapter 15 of the Family Law Rules 2004 are authorised to inspect such material subject to the following:

    (a)       The material cannot be copied without specific order of the Court;

    (b)       Any use or disclosure of the information contained within the documents produced, other than that used in the conduct of the case before this Court, is not permitted.

13. The Interim Application is reserved to a date to be advised.

14. The proceedings are listed for further directions at 11.30am on 20 November 2019.

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 Tamraz & Sargis 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 PARRAMATTA

FILE NUMBER: PAC 2677 of 2019

X Tamraz

Applicant

And

Ms Sargis

First Respondent

And

Mr Tamraz

Second Respondent

And

Mr B Tamraz

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings were initiated by a 16 year old child (“the applicant”) who seeks parenting orders on behalf of she and her twin sister (“the twin sister”) (collectively known as “the children”).  The respondents are named as the applicant’s parents and paternal uncle respectively. 

2. The applicant contends, as I understand it that various members of her paternal and maternal families pose an unacceptable risk of harm to the children.  She alleges that a number of family members sexually and physically abused her and/or her sister in their country of birth and in Australia.

3. The applicant seeks final orders that parental responsibility for herself and her sister be given to a paternal grandmother, who currently resides in an overseas country and has not yet been notified of the application.

4. At a hearing on 29 July 2019 the applicant sought that various interim orders be made on an ex-parte basis without the named respondents or paternal grandmother being notified of these applications.  An Independent Children’s Lawyer (“ICL”) who has been appointed to act in the children’s interests in these proceedings also participated at that court event and supported the making of some interim orders. 

5. On that day I made orders that the Department on Communities and Justice (“the Department”) intervene in the proceedings, restrained named persons removing the children from Australia and made an associated airport watch list order.  I reserved my decision in relation to the further interim orders sought.

6. Although the Initiating Application sought a number of interim orders only some of those were pressed at the hearing.  Specifically the applicant sought the following:

   ·That leave be granted to pursue the Application without the requirement for a litigation guardian;

   ·That service of the Application on the Respondents be dispensed with;

   ·That the Department of Family and Community Services (now known as Department of Communities and Justice) be invited to intervene in the proceedings and ancillary orders;

   ·That the Respondents be restrained from removing the children from Australia and for that purpose that their names be placed on the Airport Watch List.

7. The ICL supported the making of these orders though noted that there may be concerns about procedural fairness in relation to the restraints where the parties sought to be restrained have not yet been notified about the proceedings.

8. This judgment relates to the orders made on 29 July 2019 including in particular the invitation to the Department to intervene in the proceedings. 

Background

1. The children who are 16 were born in 2002 in an overseas country (“the home country”).  The children have two brothers in the home country, an older brother who is now 18 and a younger brother who is 14.

2. The children were cared for in the home country by their paternal grandmother from the time they were born until early 2016.  A paternal aunt and her partner (“the first paternal uncle”) also resided in this home.  The children’s parents live separately in different villages in the applicant’s home country and have never been involved in the children’s care though the mother at least does have some contact with them.

3. At some point in 2015, the twin sister travelled with the first paternal uncle and paternal aunt to another village. The applicant deposes that her twin sister disclosed to her that she was sexually abused by the first paternal uncle while she was staying at the other village.  The applicant deposes to her twin sister disengaging with the family at the time and spending time with their mother at her village for about three weeks following this incident. 

4. In early 2016, another paternal uncle (“the second paternal uncle”) travelled from Australia to the children’s home country where the children were still living.  A few months later the second paternal uncle took the children with him to live in Victoria with he and his family.  The children have New Zealand citizenship and travelled to Australia on New Zealand passports.

5. The children lived with the second paternal uncle and attended a local school in Victoria until late 2017. The applicant alleges that during this time the second paternal uncle was physically abusive to the children, disciplining them by punching, pushing and slapping them.  She says she saw him punch her twin sister to the face.

6. Late in 2017, the twin sister ran away from the second paternal uncle’s home and when she was found the children were interviewed by police. The applicant deposes to the second paternal uncle informing her not to tell police about the physical abuse. The applicant alleges that the second paternal uncle told the children of his plans to send them back to their country of birth.  The children then left and stayed with a family friend for two nights.

7. An unnamed maternal uncle then came and collected the children from Victoria and drove them to New South Wales where they began living with the maternal grandfather, his wife and their adult son (“a maternal uncle”).

8. The applicant deposes to being subjected to physical and sexual abuse in the home of the maternal grandfather.  She alleges that the maternal grandfather rubbed his hands along her body for about five to ten minutes at night time when she and her twin sister were in bed and that she pretended that she was sleeping.  She says this happened at least two to three times per week but she did not discuss this with the twin sister.  The applicant also says she was exposed to the maternal uncle’s use of cannabis in the household. 

9. From about mid 2018 the applicant deposes that the twin sister who was then in her own room reported to her that “grandpa came to my room last night”.  Around this time the applicant noticed that the twin sister stopped engaging in conversations at home and disengaged from her friends and had also stopped eating but did not wish to discuss the matter.

10. In early 2019 the applicant overheard the twin sister arguing with the maternal uncle and went to the sister’s room where she saw the uncle punch the sister to the face.  The twin sister was highly distressed and the applicant tried to calm her.  The twin sister wanted to run away saying she “had enough of this”.  The applicant and sister decided to take action together and the following day reported the assault to teachers at their school which resulted in a report to the Department.  It is unclear whether the Department took any action as a result of this report.  The children then lived for a short time with a friend’s family.  Thereafter a service known as F Services provided some assistance to the children.

11. The applicant deposes that while staying with their friend’s family she was contacted by her mother who encouraged she and her sister to return to the maternal grandfather’s home.  The maternal grandfather then came to collect the children and the applicant overheard him say that he intended to send them both back to their home country.

12. The following day when the applicant and her sister came home from school there were many family members at the maternal grandfather’s home.  For no apparent reason the maternal uncle punched the applicant three times in the face and she fell to the ground.  While lying on the ground and trying to cover her face the maternal uncle kicked her twice to the arms.  The applicant attempted to get away from the maternal uncle who was restrained by family members.

13. The applicant also reported this incident to school staff and it was subsequently reported to police. The applicant says that she was interviewed by police but no further action has been taken since.

14. In April 2019, F Services arranged for the children to be cared for by another paternal uncle (“the third paternal uncle”). The applicant alleges that the children were exposed to significant family violence perpetrated by the third paternal uncle against his wife in that household. The applicant reported this family violence to a case worker from the F Services who arranged accommodation for her in a transitional home.

15. In May 2019, the applicant started living in a supported non-government transitional home provided by F Services and has remained in that location since.   The twin sister initially remained in the home with the third paternal uncle and was still in his care when the applicant commenced proceedings. However it now appears that both children are living with the same transitional home.

16. On 27 June 2019 and 17 July 2019 the applicant’s lawyer wrote to the Department seeking their assistance or that the Secretary of the Department commence proceedings in relation to the children in the Children’s Court.

17. On 22 July 2019 a delegate of the Secretary of the Department confirmed that the Secretary will not be assuming care of the children and considered that the children were not in need of care and protection given their support from the F Services.

18. At the 29 July 2019 court event orders were made inviting the Department to intervene restraining the Respondents from removing the children and placing their names on the Family Law Watchlist and requesting that an appropriate employee at F Services provide an affidavit in relation to services provided by that agency. Pursuant to section 69ZW Family Law Act an order was made that documents be produced by the Department in relation to any notifications and investigations of suspected abuse or family violence.

The orders made on 29 July 2019

Interim orders made without notice

1. The interim orders made on 29 July 2019 were made in the absence of and without notice to the other parties. 

2. The power of the court to deal with the application on this basis is found in Rule 5.12 of the Family Law Rules 2004 (Cth) (“the Rules”).

3. Pursuant to that Rule the applicant must set out all of the facts relevant to the application including various specified matters and satisfy the court about why such an order should be made without notice to the other parties.  I am satisfied that the affidavit filed by the applicant on 7 June 2019 in support of this application complies with the applicant’s obligations under this Rule. 

4. I am also satisfied that it is appropriate having regard to all of the circumstances that the application proceed on an ex-parte basis. 

5. In my view, it can be inferred that if the respondents were aware of the application there is a real risk that they or one of them would attempt to remove the children from Australia.  On previous occasions when the children sought support from authorities family members responded by telling the children of their plans to send them back to their home country.  In late 2017 it appears that the children were only able to avoid this happening by leaving the second paternal uncle’s home and making arrangements for members of the maternal family to collect them.  In early 2019 when the children had first gone to live with a friend’s family and the maternal grandmother came to collect them from that household the applicant overheard her maternal grandfather say that he intended to send them back to their home country.

6. There are also real risks in my view to the safety of the children if the respondents were to be notified of the application.  The applicant deposes to harsh physical punishment in each of the households in which she lived and in particular to having been seriously assaulted by a maternal uncle when she returned to the maternal grandfather’s home.  It may be inferred that this was by way of punishment for children having taken action to safeguard their own welfare.

7. In these circumstances in my view real risks to the children arise in the event of the respondents being notified of this application and for this reasons it is appropriate to deal with the interim application without notice to the other parties.

The invitation to intervene

1. As can be seen from the orders of 29 July 2019 the Department’s intervention is requested in this matter in circumstances where there are serious concerns held for the wellbeing of the children and they do not currently have a person in Australia who is exercising parental responsibility for them.  It would appear that significant risks of harm to the children are posed by each of the adults who from time to time have cared for the children.

2. The children are currently residing in a transitional home. They are attending a local school and rely on F Services to provide food and clothing for them.  There is otherwise no other responsible adult providing for their day to day needs or responsible for making long term decisions for them.  Although the applicant has shown some evident maturity in appropriately seeking assistance for herself and on behalf of her sister from various authorities the children are nonetheless in a foreign country where they have only been living for two years and English is not their first language.  They have both been subjected to abuse in numerous settings and exposed to family violence but have not received any counselling or therapy to assist with the undoubted trauma that they are experiencing.  For these reasons I am satisfied that although the children have demonstrated some maturity they are particularly vulnerable. 

3. In these circumstances it is requested that the Department intervene so that the legal status of parental responsibility for these children may be regularised and all options for their care other than family members be considered.  There are also other forms of intervention which may assist these vulnerable children. 

4. The basis upon which F Services have come to offer assistance to the children is unknown but it can be inferred from correspondence between the child’s lawyer and a legal officer at the Department that the Department has been involved in some way. The Court has insufficient evidence in relation to the involvement of this service and has requested that an affidavit be filed. The Court has no power to order that such an affidavit be filed though curiously the relevant officer at F Services could be seen to be a necessary party pursuant to Rule 6.02 of the Rules. In these circumstances it may be reasonable to expect that F Services may not wish to become involved in these family law proceedings and the assistance of the Department may be more appropriate.

Other orders

1. As indicated the applicant also sought other interim orders and my decision as to those orders was reserved.

2. In my view it is appropriate for an order to be made that the applicant proceed with the case without the need for a case guardian. 

3. Rule 6.08 provides a child may start or continue a case only by a case guardian but the sub rule does not apply if the Court is satisfied that the child understand the nature and possible consequences of a case and is capable of conducting the case.

4. The child has engaged a lawyer to act on her behalf and the lawyer expresses no difficulty in obtaining instructions from the applicant.  Although the applicant is vulnerable and requires the assistance of authorities in relation to her welfare she has demonstrated sufficient maturity in seeking out assistance from appropriate agencies including legal assistance and commence these proceedings as she is entitled to do under the Act. 

5. In these circumstances I am satisfied that the child understands the nature and possible consequences of the case and is capable of conducting the case and for these reasons an order is made as sought.

6. For the foregoing reasons I make the orders set out at the forefront of this Judgement.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered in chambers on 10 October 2019.

Associate: 

Date:  10 October 2019