Zanda and Zanda

[2016] FamCA 625

FAMILY COURT OF AUSTRALIA

ZANDA & ZANDA [2016] FamCA 625

FAMILY LAW – CHILDREN – Final parenting – Where there are seven children of the relationship – Where the father and the three eldest children remain in Lebanon – Where the father has failed to return the children to Australia – Where the father has disengaged from the proceedings –Appropriate to make orders as to the four children in Australia in the absence of the father – Undefended hearing – Family violence perpetrated by the father – Father’s aberrant conduct – Best interests of the children – Children to remain living with the mother—Mother to have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode[2006] FamCA 1346
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Zanda & Zanda [2014] FamCAFC 173

APPLICANT: Ms Zanda

RESPONDENT: Mr Zanda

INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

FILE NUMBER: PAC 1889 of 2014

DATE DELIVERED: 5 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Bankstown Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

1. That all previous orders be discharged.

2. That mother have sole parental responsibility for the children W born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 ("the children").

3. That the children live with the mother.

4. That the Court requests the appropriate officer of the Department of Immigration and Border Protection and the appropriate officer of the Australian Federal Police notify the Mother in the event of the re-entry of the Father Mr Zanda born … 1975 in Australia and or any of the children T born … 2001, U born … 2003 and V born … 2005.

5. That the respondent father Mr Zanda born …1975 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.

6. That until further order the respondent father, Mr Zanda born … 1975, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the children T born … 2001, U born … 2003, V born … 2005, W (W) born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 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 respondent father and the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name and the children’s names on the Watchlist until the Court orders its removal.

7. That notwithstanding the previous orders the mother is permitted to travel internationally with the children.

8. The mother may apply for an Australian travel document (passport) for the children T born … 2001, U born … 2003, V born … 2005, W (W) born … 2006, X born … 2008, Y born … 2010 and Z born … 2012 without first obtaining the consent of the father.

9. Liberty to apply as to the operation and effect of Orders (5) and (6).

10. That otherwise all applications before the Court be dismissed and proceedings removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zanda & Zanda 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 PARRAMATTA

FILE NUMBER: PAC 1889  of 2014

Ms Z

Applicant

And

Mr Zanda

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings involving seven children. The children are:

   a)T born in 2001;

   b)U born in 2003;

   c)V born in 2005;

   d)W (W) born in 2006;

   e)X born in 2008;

   f)Y born in 2010; and

   g)Z born in 2012 ("the children").

Background

1. Certain orders were made in the Federal Circuit Court of Australia on 2 July 2014 that were the subject of appeal to the Full Court of the Family Court of Australia.

2. In its Reasons for Judgment (Zanda & Zanda [2014] FamCAFC 173) the Full Court provided a summary of the matter to the hearing of the Appeal as follows:

   1.        The father appeals from parenting and other orders made by Judge Harman in the Federal Circuit Court.  On 28 April 2014 his Honour made ex parte orders which restrained the father from leaving Australia and further restrained him from removing four of the children of him and the mother from Australia.  After an interim hearing conducted on 13 June 2014, on 2 July 2014, the judge made interim orders.  We will return to the orders later but note that the orders of 2 July 2014 neither varied nor discharged the injunctions made on 28 April 2014. 

   2.        By appeal EA 79 of 2014, the father appeals against the orders of 2 July 2014 and by EA 80 of 2014, he appeals against the orders made ex parte on 28 April 2014.  Leave was given to the father to bring the appeal against the order of 28 April 2014 notwithstanding that the time for filing the appeal had expired.  Further, procedural orders were made that both appeals be heard at the same time and that the hearing of the appeals be expedited.

   Background

   3.        There are seven children of the parties’ relationship.  They range in age from two years to twelve years of age.  All children were born in Australia and each holds Australian citizenship.  The parties agreed that their children should be born in Australia.

   4.        The mother was born in Australia in 1981. The father was born overseas in 1975 and holds Australian citizenship. Both are dual nationals.

   5.        At the time of the hearings before the judge, the three older children were overseas being cared for by the father’s family and the four younger children were in Australia with the mother.

   6.        The parties were introduced in 2001 and entered into a marriage which had been arranged by their relatives.  They married and lived overseas together until the father obtained a visa to travel to Australia and, together, the father and the mother came to Australia in June 2001.  They lived in Australia until March 2007 when the father, mother and their then four children travelled to Lebanon. 

   7.        The father said that in 2006 he and the mother had a discussion in which it was decided that they would live in Lebanon and raise the family there.  Consequently the father said that they found and purchased a flat and split their time between there and the paternal grandfather’s village.  The father said he believed he could earn more money in Australia than he could in Lebanon and they decided to return to Australia from time to time to accumulate savings.  It was the father’s case that he never intended to live permanently anywhere but Lebanon.  Although not directly addressed in the mother’s affidavit, we accept that this may be a contentious issue.  From 2007, the family travelled frequently between Lebanon and Australia and we now set out the family’s movements to understand the context of the matter before the primary judge. 

   8.        In March 2007 the father, mother and their then four children, travelled to Lebanon.  They remained there until 11 May 2007 when the father, mother and three of their children returned to Australia.  Their daughter remained in Lebanon and, but for a period of two months spent in Australia, has lived in Lebanon ever since.

   9.        Between May 2007 and 20 August 2008, the parties lived in Australia with three of the children. A fifth child was born in Australia during this time.

   10.      On 20 August 2008 the mother travelled to Lebanon with the four children and returned to Australia on 16 November 2008 to ensure the continuation of her Centrelink benefit.  She brought the two younger children with her to Australia. The other two children remained in Lebanon and they have lived there since then.

   11.      On 24 February 2009, the mother travelled to Lebanon returned to Australia on 23 April 2009 bringing three children with her.

   12.      On 16 August 2009, the father, mother and the three children who were in Australia returned to Lebanon where they remained until 24 September 2009.  When the father and mother returned to Australia they brought the younger two children.  The mother said that she returned because she needed to secure the continuation of her Centrelink benefit and to await the birth of another child who was born during this stay in Australia.

   13.      The parties remained in Australia until 16 December 2010 when the mother and these three children travelled to Lebanon.  They remained there until 6 June 2011 when the mother and the youngest two children returned to Australia. 

   14.      The mother and the youngest two children returned to Lebanon on 15 September 2011 and she lived there with all of the children until 12 March 2012 when she returned to Australia bringing her youngest daughter with her to await the birth of her seventh child.

   15.      The mother, and the two small children returned to Lebanon on 15 July 2012 where again they lived with the other children and the paternal grandmother. The father returned to Lebanon on 12 June 2013.  On 24 March 2014 the mother and father returned to Australia with the youngest four children, ostensibly for a short period to enable the mother to have an operation in Australia. 

   16.      When the parties and the four children arrived at Melbourne airport on 24 March 2014, the mother sought the assistance of the police saying that she was in need of protection from family violence from the father.  That assistance was provided and the mother and four children left the airport without the father.  It seems that the mother was living with relatives in Sydney at the time of the hearing before the judge.

   17.      During the parties’ absences from Lebanon, the three older children have been cared for by the paternal grandmother and members of the father’s family.  When the parties or the mother and children were together in Lebanon, it appears that the paternal grandmother lived with them.

   18.      The three children who have been in overseas since 2008 attend a private school in Lebanon as did two of the children who came to Australia in March 2014.

   The proceedings on 28 April 2014

   19.      On 24 April 2014 the mother filed an initiating application as well as an accompanying affidavit seeking orders that the four children in Australia live with her and that she have sole parental responsibility for them.  She further sought orders that she and the father do all acts and things necessary to cause the older three children to be brought to live in Australia and, on that occurring, all seven children be prevented by order from being removed from Australia.  The orders also sought to restrain the father from leaving Australia.

   20.      On 28 April 2014 the mother filed an application in a case seeking orders in the same terms as her initiating application on an interim basis. The father was not served with the applications or the affidavit. Being satisfied that the matter was both urgent and required orders to be made ex parte, Judge Harman proceeded to determine the matter.

   21.      His Honour relevantly ordered:

   (1) By reference to Part 5 of the Federal Circuit Court Rules 2001, declare that I am satisfied that it is appropriate for the Application in a Case filed 28 April 2014 to be dealt with by the Court on an ex parte basis.

   (2)      That until further Order the respondent father [Mr Zanda] be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent's name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent's name on the Watch List until the Court orders its removal.

   (3)      That until further Order each party, [the mother] and [the father], 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 … 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 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 Watch List until the Court orders its removal.

   (4)      Pursuant to section 68B and pending further Order, the Respondent Father … shall be is hereby restrained and injuncted from: 

   (a)      Entering upon or approaching within 100 metres of the place     of residence of the mother and the children … or any school or educational institution attended by those children or any of them;

   (b)      Taking or attempting to take the children … into his care whether personally or through any other person or agent.

   …

   28.      On 2 July 2014 the judge ordered:

   1.        The wife shall advise the husband forthwith upon her being in possession of funds sufficient to meet airfares for each of the [three older] children … together with one accompanying adult to travel from Tripoli, Lebanon to Sydney, Australia.

   2.        Within 48 hours of being advised by the wife of her holding such funds the husband shall advise the wife of the arrangements that have been made by him to secure the travel of [the children in Lebanon]to the Commonwealth of Australia including:

   (a)      The name of the person who will be travelling and          accompanying the children;

   (b)      The flights proposed to be organised and the cost of same including departure time from Tripoli, arrival time at Sydney and flight number and airline details;

   (c)      The full name, date of birth, passport number and other   relevant information with respect to the accompanying adult.

   3.        Forthwith upon receipt of the above information [the mother] shall arrange, book and pay for the flights nominated, such flights to be booked as economy fares.

   4.        In the event the husband shall fail, neglect or refuse to provide advice to the wife of the above matters, then forthwith upon the expiration of the period of 48 hours from the wife’s advice to the husband, the wife shall be at liberty to make such arrangements as she may desire to cause the three children… to travel from Tripoli, Lebanon to Sydney, Australia and accompanied by such person or persons as she may desire and arrange.

   5.        Each of the husband and the wife shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children … to be delivered into the Commonwealth of Australia no later than 12noon (sic) Friday 18 July 2014.

   6.        Orders 1-5 of the Orders made by consent 19 May 2014 (being Orders restraining [the mother] from leaving the Commonwealth of Australia and requesting that her details be recorded upon the Airport Watch List to secure compliance with that Order) are discharged.

   7.        Request a copy of these Orders be forwarded forthwith to the Marshall of the Federal Circuit Court of Australia and to the Australian Federal Police together with a request that [the mother] be forthwith removed from the Airport Watch List.

   8.        Orders 2 of the Orders made 28 April 2014 (being Orders restraining the husband [the father] from leaving the Commonwealth of Australia and requesting that he be placed upon the Airport Watch List) shall be discharged forthwith upon arrival into the Commonwealth of Australia of each of the children ...

   9.        Request a copy of the Judgment delivered 2 July 2014 and the documents filed by the parties in these proceedings be referred to the Department of Immigration and Citizenship.

   10.      Request a copy of the Judgment delivered 2 July 2014 and the documents filed by the parties in these proceedings be referred to the Department of Human Services (Centrelink).

   29. His Honour made further orders setting the matter down for hearing before him on 7 October 2014 and, pursuant to s 11F of the Family Law Act 1975 (Cth), (“the Act”) directed the parties to attend a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference and requested the Family Consultant to provide a report to the Court on the outcome of that conference.

3. The Full Court on determining the appeal made orders as follows:

Orders Made 17 July 2014

(1)         1.      The appeal EA79 of 2014 be allowed in relation to orders 9 and 10 made by Judge Harman on 2 July 2014.

(2)         2.      Orders 9 and 10 made by Judge Harman on 2 July 2014 be set aside.

Orders Made on 15 September 2014

1.        The appeal EA 80 of 2014 against order 2 made by Judge Harman on 28 April 2014 be allowed, and subject to order 2 of these orders, order 2 of those orders be set aside.

2.        Pending further order, there be an order in the same terms as order 2 of the orders made by Judge Harman on 28 April 2014 that:

2.          That until further Order the respondent father [Mr Zanda] be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.

3.        The appeal EA 79 of 2014 against orders made by Judge Harman on 2 July 2014 be allowed in relation to orders 2, 3, 4, 5, 8 and 16(b), and those orders be set aside.

4.        The matter is remitted for hearing before a judge of the Federal Circuit Court other than Judge Harman.

…      

1. As can be seen, the father remained injuncted from leaving Australia.

2. On 30 September 2014 the proceedings were transferred to this Court.

3. On 7 November 2014 an order was made appointing an Independent Children’s Lawyer (“ICL”) for the subject children in the proceedings.

4. Proceedings were listed for hearing on 30 January 2015 as to the question of the appropriate forum.

5. However on 15 December 2014 orders were made by consent that provide:

   BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT:

   1.        The mother have sole parental responsibility for the children, [T] (born … 2001), [U] (born … 2003), [V] (born … 2005), [W] (born … 2006), [X] (born … 2008), [Y] (born … 2010) and [Z] (born … 2012) ("the children").

   2.        The children are to live with the mother.

   3.        Order 2 of the Orders made 24th April 2014 (being an order restraining the Father [Mr Zanda] born … 1975 from leaving the Commonwealth of Australia and ordering that he be placed on the Airport Watch List) shall be discharged forthwith.

   4.        That each of the husband and the wife shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children [T] (born … 2001); [U] (born … 2003); [V] (born … 2005) to delivered to the mother into the Commonwealth of Australia no later than 20th January 2015.

   5.        That each party pay their own costs of these proceedings.

   6.        That the Mother shall deliver the children’s passports to the Registrar of the Family Court of Australia Parramatta Registry by 24 January 2015 and the Registrar shall retain the passports in the Court.

   IT IS NOTED THAT:

   A.        For the purposes of Order 6 above that the order will facilitate the Mother delivering the children’s passport to the Registrar of the Family Court of Australia Parramatta Registry upon the presence of all of the children in Australia.

   BY CONSENT, IT IS FURTHER ORDERED THAT:

   7.        The hearing fixed on 30 January 2015 vacated and the matter is listed for Case Management hearing at 11:30am on that date.

1. It was no surprise when on 30 January 2015, after his solicitors had filed a Notice of Ceasing to Act, that there was no appearance by or on behalf of the father who had failed to comply with orders and failed to return the children in Lebanon to Australia. The only contact it appeared in Australia was the father’s brother who resided in Sydney.

2. The mother and the four children in her care attended upon a Family Consultant later for Child Responsive Program interviews. 

3. On the 18 May 2015 orders were made as follows:

   IT IS ORDERED THAT:

   1.        The matter be remitted to the Docket Registrar on 1 July 2015 at 11:30am for the purposes of allocating Child Responsive Program intake dates with the parties to be advised of those appointments in due course.

   2.        The matter is adjourned to Friday 12 June 2015 at 10:00am for interim hearing.

   3.        The Mother file and serve an Application in a Case setting out with particularity interim orders to be sought by her with any affidavit material in support by no later than 5 June 2015.

   4.        A sealed copy of the orders made today be forwarded by ordinary prepaid post to the Father’s brother [Mr N] at [B Street, Suburb C] NSW together with a letter from the Mother’s solicitor informing the recipient that in the event that there is no appearance by or on behalf of the Father on the adjourned date any interim application will be dealt with in his absence and further directions may be made for the matter to proceed to undefended hearing following receipt of the Child Responsive Program memorandum.

   IT IS NOTED THAT:

   A.        Following receipt of the Child Responsive Program memorandum, the Court will give consideration to listing the matter for undefended hearing noting that the Husband has returned to Lebanon and has not returned to Australia during the period of the adjournment.

4. On 12 June 2015 orders were made as follows:

   IT IS ORDERED THAT:

   1.        Compliance by the parties with Order 4 made on 15 December 2014 be extended in that the parties shall comply with their obligation for the children to be delivered to the Mother in the Commonwealth of Australia by no later than 30 September 2015.

   2.        The Court requests the appropriate officer of the Department of Immigration and Border Protection and the appropriate officer of the Australian Federal Police notify the Mother through her legal representatives Legal Aid Bankstown in the event of the re-entry of the Father [Mr Zanda] born … 1975 in Australia and or any of the children [T] born … 2001, [U] born … 2003 and [V] born … 2005.

   3.        Leave is granted to the Independent Children’s Lawyer and or the Mother’s solicitors to relist the matter on short notice by application to the Associate in Chambers in appropriate circumstances.

   4.        A sealed copy of the orders made today be forwarded by ordinary pre-paid post to the Father’s brother [Mr N] at [B Street, Suburb C] NSW together with a letter from the Mother’s solicitor informing the recipient that in the event of the Father’s non-compliance of the Father’s obligations under the orders that the matter may be relist before the Court.

   5.        The matter is adjourned to Thursday 8 October 2015 at 9:30am for a further Case Management hearing.

5. Thereafter on 8 October 2015 orders were made as follows:

   IT IS ORDERED THAT:

   1.        The mother is to attend and make the children available to Child Dispute Services at 9.00am on 3 December 2015 for the purposes of a Child and Parents Issues Assessment.

   2. That until further order the Respondent father, [MR ZANDA] born … 1975, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of [MR ZANDA] from the Commonwealth of Australia.

   3.        AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said Respondent father on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Respondent father’s name on the Watchlist until the Court orders its removal.

   4.        The Independent Children’s Lawyer and the solicitor for the Applicant mother or either of them have liberty to re-list the proceedings for mention.

6. The children in Lebanon remained there. The father did not return to Australia.

7. On 17 May 2016 it was ordered:

   IT IS ORDERED THAT:

   1.        The matter is adjourned to Wednesday 15 June 2016 at 10:00am for undefended hearing.

   2.        The Mother file and serve a short minute of orders sought by her on undefended hearing and one consolidated affidavit of her evidence in chief by no later than Tuesday 31 May 2016.

   3.        In the event of there being no appearance by or on behalf of the Father on the adjourned date the Mother’s application for parenting orders in relation to the four youngest children of the marriage will proceed to undefended hearing.

   4.        A sealed copy of the orders made today and such other documents as have been directed to be served be served by forwarding same by ordinary prepaid post addressed to the Father care of his brother [Mr N] at [B Street, Suburb C] NSW together with a letter from the Mother’s solicitor that in the event of the Father’s non-attendance on the adjourned date the Mother’s application will proceed to final hearing with any such service to be effected by Friday 10 June 2016.

   5.        The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday 10 June 2016.

Procedural Fairness

1. As observed by Tree J in Tiffany & Tiffany [2014] FamCA 556 at [25]-[27]:

   The rules of procedural fairness and natural justice need to be considered before determining a matter on an undefended basis.  Within the rule of procedural fairness lies the indispensable requirement of the court system of justice that a party potentially affected by a decision of a court have the opportunity to be heard before the decision is made.  As highlighted in Allesch v Maunz (2000) 203 CLR 172:

   Where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

   However, as was emphasised by the High Court, including by Kirby J:

   It is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before orders are made.  The principle does not require the decision-maker to actually from the party.

   As Kirby J put it at paragraph 38 of Allesch v Maunz:

   Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require.

2. The father engaged in these proceedings including appellate proceedings until he was permitted (by consent) to return to Lebanon. Thereafter he has failed to engage at all in the proceedings notwithstanding attempts to keep him informed of various court orders.

3. In all of the circumstances it is appropriate that orders be made to deal with the parenting arrangements for the four children in Australia in the mother’s care and that the mother’s application proceed to finality.

4. The mother and the ICL in summary sought orders that provided:

   a)For the mother to have sole parental responsibility for the children;

   b)That the children live with her;

   c)That the mother and father be restrained from removing all seven  children from Australia; and

   d)That the father be restrained from leaving Australia should he re-enter the country.

5. During the course of submissions it was agreed by the mother and the ICL that there be no restraint on her and the children travelling overseas. While it is not proposed to restrain the mother from doing so it must be said that should she travel to circumstances where this Court will have no jurisdiction over the children or the ability to enforce its orders by reason of international convention or otherwise she will do so at her own risk.

6. It is to be inferred that the older three children now remain in Lebanon in circumstances much the same as were outlined above. The mother received school reports for these children for the 2015 school year. It appears that the children are attending a private school in Lebanon and are progressing well in their studies.

7. The mother currently resides in comfortable three bedroom cottage accommodation with the subject children. The mother is in receipt of parenting pension entitlements from Centrelink and receives no financial support from the father.

8. The three older children in the mother’s care are attending the local public school and the mother says that they are progressing better than average. The youngest child now aged four attends preschool three days per week.

9. To her credit the mother is enrolled in further tertiary studies in a qualification that would fit well with the ongoing need to be the primary carer for four young children.

10. The mother until mid-2014 attended her local women’s health centre for counselling as a consequence of a referral to that service by a local support group. The mother has now ceased counselling but has ongoing contact with a treating psychiatrist who was assisting her with issues arising from her relationship with the father and her separation from the three older children.

11. The maternal grandmother lives locally and provides the mother with assistance in the care of the children.

The Family Consultant’s Report

1. The mother and the four children in her care attended on a Family Consultant for the purposes of the Child Responsive Program on 3 December 2015.

2. The Consultant’s report is dated 4 February 2016 (Exh C).

3. For the reasons set out above the father and three eldest children were not seen by the Family Consultant.

4. The four youngest children were seen by the Family Consultant. The eldest of those four children W, then aged nine, appeared anxious when spoken to by the Family Consultant. She was asked what she liked about her father and her response was that she “didn’t like living with him”.

5. The child X then aged seven presented to the Family Consultant as confident and willing to answer questions. The child spoke of excitement about his new school and communicated to the Family Consultant his understanding that the older children in Lebanon wanted to come and live with his mother. When asked what he liked about living with his dad the child replied “no… If (I) did something wrong he would shout at me.,. He would hit my big brothers and [V]”. The child further said “dad doesn’t talk with mum, he talks bad and not nice”. It was clear that the child was not fond of his father.

6. The child Y recalled that she lived with her cousin D (presumably in Lebanon) and then with her mum. She could not remember any think she didn’t like about her mother.

7. The youngest child, Z, although it appeared to the Family Consultant eager to be interviewed, was not spoken to by reason of his age.

8. The mother recited to the Family Consultant the history of physically violent and controlling behaviour by the father particularly in the presence of the children. The mother complained that the father had taken away her financial freedom and stopped her from leaving the home on her own and from having contact with family and friends. The mother further expressed her concerns to the Family Consultant that the father may have a mental illness as “he gets angry easily, speaks to himself in a loud voice and shows no remorse when he is violent.

9. The Family Consultant expressed some concern over the anxious presentation of the child W. It would be appropriate that the mother seek some intervention to assist the child.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act relevantly provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)    There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)   …

   c)   If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

6. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).

7. It is clear in this matter that the presumption will not apply by reason of the father’s family violence. Otherwise a consideration of the best interests considerations below in the context of the matters lead to the inescapable conclusion that the mother have sole parental responsibility for the subject children.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.

3. The children’s relationships with both parents are overshadowed by the issues discussed above as to the overshadowing spectre of the father’s aberrant conduct, violence and his wilful absence from their lives. The manner in which the children can have a meaningful relationship with the father needs to be alert to such issues and the need to fashion orders protective of the children and their relationship with the mother.

4. It is otherwise clear that it is important for the children to continue in the primary care of the mother.

Section 60CC (2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above there are significant risk factors in exposing the children to the father.  Any relationship with him at present is problematic in the light of perceived threats to remove the children from the mother’s care. Orders will be made to address this issue.

The Additional Considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;

   b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   m)Any other fact or circumstance that the Court thinks is relevant.

1. The children’s views, such as they are, are considered above in the context of the Family Consultant’s report. They are indicative of a wish of the children to remain together in the ongoing care of the mother.

2. The nature of the relationships between the children at present with the mother and with their absent father is discussed above. It is clear that the maintenance of the children’s primary relationship with the mother is important for these young children into the future. The mother has ongoing support from the maternal grandmother who lives nearby. The children have no relationship the father at present, that circumstance is a matter that remains in his hands alone.

3. The role that each of the parties has played in making long-term decisions in relation to the children can be gleaned from the discussion above. The mother has assumed primary parental responsibility for the children in Australia and she will continue to do so in circumstances where the father has abdicated any vestige of his responsibility in that regard to the mother.

4. The mother is the primary provider for the children in circumstances where she receives no financial support from the father whatsoever.

5. The mother does not seek to change the children’s present settled circumstances with her but the orders reflect her intention to remain living with the children in Australia with the support of her extended family.

6. The practical difficulty and expense of the children spending time with the father is at present not a consideration, particularly in circumstances where the only opportunity that will be available to him will be should he come to Australia which at least in the foreseeable future remains a very remote possibility.

7. The capacity of both parents has been considered above. The mother has been and remains the children’s primary carer and will do so into the future. There is no issue as to her capacity to meet the children’s needs. As to the father all that can be said is that his conduct in wilfully causing a division of his family reflects poorly on him and his capacity to reflect properly on the needs of his seven children as a group. An assessment of his capacity renders it patently clear that it is appropriate for the subject children to remain in the care of the mother.

8. The children in the care of the mother are young and need a settled and stable environment in which to develop in circumstances where they are estranged from their older siblings and will have no relationship with their father.

9. The mother more recently has demonstrated an appropriate attitude to her responsibilities of parenthood particularly in her endeavours to seek to have her children reunited despite the frustration of that endeavour by the father. The father by his conduct and subterfuge has demonstrated an inappropriate attitude to his responsibilities of parenthood that are clearly indicative of the orders being sought by the mother and the ICL in these proceedings being made.

10. The circumstances of family violence including controlling and coercive behaviour by the father have been considered briefly above. Those circumstances are also clearly indicative of the orders being sought by the mother being in the best interests of the children. There appears to be no relevant family violence order.

11. It is preferable that in the present circumstances in which the mother finds herself there be finality in relation to orders relating to the children in her care. In the circumstances it is appropriate to make those final orders.

12. There is no other relevant fact or circumstance.

13. Having regard to the best interests of the children as discussed above it is clearly appropriate that orders be made as sought by the mother and the ICL.

14. Orders will be made accordingly.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 August 2016.

Associate: 

Date:  5 August 2016