Zanda and Zanda

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANDA & ZANDA

[2014] FCCA 1333

Catchwords:
FAMILY LAW – Parenting – proceedings dealt with on an ex parte basis – risk of party and children departing Commonwealth of Australia if notified of proceedings – where the departure of a party and children would render relief sought nugatory – Airport Watchlist order – allegations of family violence – separation from caregiver potentially psychologically harmful to children.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC(2), 61DA, 61F, 65DAA(5), 67ZBB, 68B, 114

Federal Circuit Court Rules 2001, r.5.03

Applicant:

MS ZANDA

Respondent:

MR ZANDA

File Number:

PAC 1889 of 2014

Judgment of:

Judge Harman

Hearing date:

28 April 2014

Date of Last Submission:

28 April 2014

Delivered at:

Parramatta

Delivered on:

28 April 2014

REPRESENTATION

Solicitors for the Applicant:

Legal Aid New South Wales

Solicitors for the Respondent:

N/A ex parte application

ORDERS

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.
That until further Order the respondent father Mr Zanda, born (omitted) 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.
That until further Order each party, Ms Zanda, born (omitted) 1981, and Mr Zanda, born (omitted) 1975 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 T (born (omitted) 2001); U (born (omitted) 2003); V (born (omitted) 2005); W (born (omitted) 2006); X (born (omitted) 2008); Y (born (omitted) 2010); and Z (born (omitted) 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 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.
Pursuant to section 68B and pending further Order, the Respondent Father Mr Zanda 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 W, X, Y and Z or any school or educational institution attended by those children or any of them;
(b)Taking or attempting to take the children W, X, Y and or Z into his care whether personally or through any other person or agent.
Vacate the return date of the Initiating Application namely, 3 June 2014.
Adjourn all extant Applications for further mention and directions to 9.30am on 19 May 2014.
Grant leave to the solicitor for the Applicant to amend the return date of the service copies of documents filed to date and to do so prior to service upon the Respondent.
The Applicant shall do all things within her power to cause the Application in a Case and Initiating Application and supporting Affidavit’s to be served upon the Respondent or otherwise brought to his attention as soon as practicable and shall in addition, cause a copy of these Orders and if available, reasons for Judgment to be served upon the Respondent.

IT IS NOTED that publication of this judgment under the pseudonym Zanda & Zanda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 1889 of 2014

MS ZANDA

Applicant

And

MR ZANDA

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings involving an application for parenting orders with respect to seven children, the oldest of whom is 12 years of age, the youngest of whom has recently turned two.
The parties to the proceedings are the children’s parents, being their mother Ms Zanda and their father Mr Zanda. Ms Zanda is the Applicant in the proceedings, Mr Zanda is the Respondent.
Ms Zanda appears today and is legally represented.
Mr Zanda does not appear today. He has not been served.
The application before the Court today comprises an Application in a Case filed this morning and listed before me on an urgent basis following an exercise of discretion by a Registrar.
The application for substantive relief was filed on 24 April 2014. That application is also not served. That application seeks orders that all seven children reside with their mother and that she have sole parental responsibility for them. The Application in a Case seeks relief on an interim basis in similar terms to the substantive application and, in addition, certain restraints.
The Applicant seeks that four of the children, the four youngest all of whom are all present in Australia, live with her and that she have sole parental responsibility for them.
Orders are sought which would compel both parents to do all reasonable and necessary acts to cause the three eldest children, T, U and V, to be returned to the Commonwealth of Australia as well as a restraint upon the father departing the Commonwealth of Australia. Ms Zanda finally seeks that all seven children, together with the father, be placed on the Airport Watchlist.
The application is brought in urgent circumstances and on the basis that the Applicant holds concerns that the father, the Respondent, if notified of the existence of the proceedings by service of process, would forthwith depart the Commonwealth of Australia, possibly first seeking to take action to take one or more of the four children present in Australia into his care and depart with them.
An application for ex parte relief requires that the Court addresses each of the matters set out in rule 5.03 of the Federal Circuit Court Rules 2001. I propose to deal with each of those criteria briefly before dealing with the substance of the application.

Whether there are previous proceedings and, if so, the nature of the proceedings

There have not been prior proceedings between the parents.
It is alleged that there has been some involvement with Police in New South Wales regarding allegations of family violence. However, no proceedings have arisen, whether within the criminal jurisdiction or this Court.

Whether there are any current proceedings in any court

There are none.

Particulars of any orders currently enforced

There are none.

The steps that have been taken to tell the Respondent or the Respondent’s legal representative of the Applicant’s intention to make an application or the reasons why no steps have been taken

That is the substance of the Applicant’s position.
The Applicant’s material, which comprises two affidavits, one filed with the Initiating Application on 24 April 2014 and one with the Application in a Case filed today, is, as already noted, that there is a risk that the Respondent, with one or more of the four children presently in Australia, will depart the Commonwealth of Australia if given notice of these proceedings.
To address this issue I need to address that alleged by the Applicant as to the history of the relationship and the children’s care arrangements and I turn to that now.

The Mother’s Evidence

The Applicant’s evidence alleges that there has been unilateral action of similar nature in the past, including removal of children to or from Lebanon.
The Applicant’s evidence is resplendent with allegations of family violence. It is suggested, in fact, that when the Applicant and Respondent returned recently to Australia that the assistance of Police was obtained forthwith upon arriving within the jurisdiction. The mother suggests that both of the parties had travelled with each other (and four of the seven children) from Lebanon and arrived in Australia on 24 March this year. Upon arriving at Melbourne Airport the mother sought the immediate assistance of the Australian Federal Police and then departed Melbourne for Sydney (where the parties had ordinarily lived when present in the Commonwealth of Australia and where the Applicant has family).
For a period prior to that – in fact, from 15 July 2012 – the Applicant had lived in Lebanon with all seven of the children in her care. The Respondent remained in Australia until June, 2013 and then joined the Applicant in Lebanon.
There is some controversy on the Applicant’s own evidence as to whether all seven children were in her care at all times, it being noted at paragraph 79 of her Affidavit, that the child V has stayed with the paternal grandmother from 2007, save and except for a period that that child had travelled with her mother to Australia between 23 April 2009 and 16 August 2009 and it seems clear that the two eldest children have lived in Lebanon for a similar period (albeit with the mother present with them for significant periods) .
It is the evidence of the mother (paragraph 9 of her Affidavit) that all seven children lived with her during the period that she was in Lebanon commencing 15 July 2012 as well as various prior periods of weeks to months. Further, several of the children and particularly the four youngest have lived with the mother or mother and father in Australia.
I note that the proceedings have come on urgently and the material has been prepared urgently and with the most valuable assistance of the Legal Aid Commission Early Intervention Unit. Accordingly, I do not raise that matter for the purpose of criticism, but simply to note that those circumstances are apparent from the mother’s evidence and must, in due course, be fully addressed.
Upon returning to Australia most recently the mother, having sold various items of jewellery and gold to fund her return as well as to have money upon returning, contacted a customs official whilst the father had gone to collect bags from a baggage carousel and requested that they call the Police so that she could get away from her husband (see paragraph 16). It is suggested the Police then attended and caused the father to leave the airport.
The mother deposes that she and the four children then in her care then slept at the airport that evening before being able to purchase tickets the next day to travel from Melbourne, where they had landed, to Sydney, where her family lives.
The mother suggests that she has not spoken to the father since separation. His whereabouts are not specifically known. He may still be in Melbourne, although it is suspected that he is at the home of, or at least is in contact with, an uncle who lives in Sydney. Thus, there would be some difficulty in service being effected at this point in any event.
The parties were married in Lebanon in an arranged marriage in 2001. They are first cousins. The mother’s father is the brother of the father’s father.
The marriage was arranged and the mother suggests she had some reluctance to marry but ultimately did after certain discussions with her family and a sheik.
The mother was born in Melbourne of Lebanese parents. The father was born in Lebanon and had not entered Australia prior to marriage. The father has obtained Australian citizenship.
The mother deposes in some detail to the movements backwards and forwards of the parties and of the children, or some of them, between Lebanon and Australia.
It is suggested that, following the marriage of the parties, they had lived together in Australia, staying initially with the wife’s sister and her husband, who is also the husband’s brother.
It is suggested on the Applicant’s evidence that, upon arriving in Australia, family violence commenced almost forthwith. That family violence alleged is detailed in the mother’s Affidavit, particularly commencing at paragraph 45 onwards. There is a litany of events referred to throughout the material. The violence that is suggested is of a coercive and controlling nature as defined in section 4AB of the Family Law Act 1975.
The violence has included alleged physical assaults upon the mother, included being punched to the face and other parts of her body with a closed fist, and including injury being occasioned thereby, such as open wounds and bruising. It is suggested that this violence has occurred frequently and in the presence of the children.
Other types of violence are also suggested, including the father threatening the mother with a knife, being abusive towards her, financially and physically controlling, cutting off her communication with various family members including, on one occasion, prohibiting her from opening the door to her own mother and instead calling the Police so that they would remove her from the front doorstep.
The mother suggests, within this context, a maelstrom of family violence, that she has had little, if any, control over circumstances that have affected her life, including the number of children that have been born to this relationship and their placement and care arrangements.
It is suggested by the mother that on one recent occasion that she had disclosed to the father that she had sought out and obtained contraceptive assistance and that is alleged to have led to a particularly nasty assault upon her.
The arrangements for the children have been typified by comings and goings between Lebanon and Australia. After the fourth of the children was born, the parties returned to Lebanon briefly.
Shortly before the first departure from Australia the parties had separated from each other. However, the mother had gone to the home of her parents (with the children) and they had cajoled her into returning to the marriage.
Having returned, a family holiday to Lebanon was discussed. The mother indicates at paragraph 60 of her Affidavit that at this time she said to her husband, “you have to swear you won’t leave any of our kids overseas like your brother did with his children. You have to swear on the Koran.” It is suggested that the husband was then given a Koran and that he swore, “I am not going to leave any of my kids in Lebanon.”
The parties then travelled to Lebanon in March 2007. Return tickets for both parents and for all four children were purchased and the holiday was intended to be for a period of two months.
Upon returning to Australia in May 2007, however, it is alleged that the child V stayed in Lebanon at the behest of the father and members of his family. V has remained in Lebanon thereafter, save for a brief trip to Australia between April and August 2009.
It is suggested that in August 2008, there then being five children of the relationship that the mother travelled to Lebanon with her sister and all of the children. After being in Lebanon for two months, it is suggested that the father contacted the mother and said to her, “Your Centrelink payments are going to stop. You have to come back to Australia to renew it.”
The mother then returned to Australia in November 2008, travelling with two of the children. The mother suggests the other children had remained in Lebanon as she expected to return to Australia, address the Centrelink issues and immediately return. However, she indicates that her husband then precluded her from returning (see paragraph 66 of her Affidavit).
The mother next returned to Lebanon between February and April 2009 with the two children who had returned with her to Australia. Upon returning to Australia in April 2009, three of the then five children accompanied her.
The mother returned with her husband to Lebanon in August 2009 and remained there until September. The children stayed, for the first 2 days of that visit to Lebanon, at the home of the husband’s brother and then with the parties.
In September 2009 the mother returned to Australia and, when she came back, two of the children travelled with her. The other three children remained in Lebanon, the mother deposes, because their father had indicated that they would all return to Lebanon and were only returning to Australia briefly and temporarily for the purpose of addressing and ensuring ongoing payment of Centrelink benefits.
Upon returning to Australia, it is suggested that the husband said to the mother, “You will never see your parents again.” The wife’s parents live in Sydney. A brief separation then occurred. The parties reconciled and shortly thereafter the mother became pregnant with a further child of the relationship. The mother deposes that the husband insisted that that child be born in Australia to ensure that they were eligible for and received the baby bonus and that after the child was born they would travel to Lebanon.
Indeed, that transpired. After the child was born in (omitted) 2010 the mother or possibly the parties travelled to Lebanon in December 2010, taking with them the newborn child as well as the two children that had returned to Australia with them. The parties stayed together in Lebanon until 6 June 2011, when the mother (and the father if he had travelled) returned with two of the then six children.
The mother and father then travelled back to Lebanon in September 2011 and returned to Australia in March 2012. The mother returned so that she could give birth to the youngest of the seven children and be eligible to receive the baby bonus. Only the then baby, the sixth child, returned to Australia on this occasion. The other five children remained living in Lebanon.
The mother deposes that the father had said to her, “The other five children are in school and we shouldn’t take them out of school. You’re just going to Australia for a few months and then coming back to Lebanon.” The parties remained in Australia for a brief period of time. Five of the seven children remained in Lebanon.
It is suggested by the mother that the children have been split up on various occasions, that they lived between different paternal relatives’ homes and, other than V, who has spent all or most of her time living at the home of the paternal grandmother, that the children have not had consistency in their care arrangements nor all lived together. Indeed, since 2007, the seven children of this relationship have not all lived together other than for brief periods when the mother has been in Lebanon and they have lived with her.
The mother suggests that the children that live in Lebanon are not happy in their present placement and that the eldest child T had contacted her approximately three weeks ago, was crying, and had said to her, “When are you going to get us? Our grandmother is constantly hitting us for no reason and smashing our heads into the wall. She keeps on hitting V and pulling her hair.”
The four youngest children are now living with the mother in Sydney. The mother is staying with those children at the home of her parents.
As regards the absence of steps taken to notify the father of these proceedings it is clear from the mother’s evidence that she has concerns, based on past actions, that if the father were given notice of her application, the orders that she is seeking and the relief that she seeks to have the Court impose, that the father may then well leave Australia himself and thus render the prosecution of her proceedings nugatory or seek to remove one or more of the four children presently in her care and travel with them to Lebanon. It is the latter that is of greater concern.
Whilst the father’s presence is not necessary for the wife to prosecute her substantive application the father’s absence would render nugatory the mother’s interim and interlocutory applications especially as regards the return to Australia of the three eldest children presently in Lebanon.

Why the making of an order is urgent and why an abridgement of time is not sufficient

If one is to accept the mother’s evidence – and for present purposes, this application being made on an ex parte basis, I do accept it on face value, and for that limited purpose – there is a real risk that if the father is given notice of the orders that are to be sought, particularly as regards the injunctions sought both positive and restrictive, that he will take himself and/or one or more of the children, from the jurisdiction.

Accordingly, I am satisfied that portion of the relief is of sufficient urgency.

The return of children to the Commonwealth of Australia

As to the order that is sought which would compel the parties, and each of them, to cause the return of the three eldest children to Australia, I am not satisfied that this portion of the application is of such urgency that it cannot and should not be the subject of full and proper due process afforded to the father. Abridgement of time is adequate for that purpose.
I am also conscious that, as the proceedings on this occasion are dealt with on an ex parte basis, that the matter can, must and should be brought back to Court earlier than the presently allocated return date of 3 June 2014. Regrettably, due to a number of commitments within the Court, that date cannot be as early as would be desired. However, it will be at least some weeks earlier than the date allocated.
There are a number of forensic steps which also require attention in the proceedings, such as obtaining further material by way of subpoena and the like whether from the Police, the Department of Immigration, (as regards travel records), or otherwise. They are matters that can and should properly and appropriately await the participation of both parties in the proceedings, assuming the father can be served.

Capacity of the Applicant to give an undertaking as to damages

This is not relevant, the provision relating only to financial proceedings.

Other facts, matters and circumstances relied upon

As regards the relief that is sought, I do not propose to deal with any aspect of the Application in a Case nor the Initiating Application save to, firstly, restrain the father from approaching the mother or the four children in her care or taking those children into his care, and secondly, to deal with and make orders to place upon the Airport Watchlist both the father and the children.

Legislative Pathway

I thus turn to the legislative pathway and the evidence relied upon in the proceedings, the majority of which is canvassed as above.
In dealing with the substantive issue, I am required to follow the legislative pathway and thus commence with the objects and principles in section 60B of the Act, which I incorporate herein:
(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).
The Court is mandated to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their life and that they are protected from physical or psychological harm. Those objects very much mirror the primary considerations in section 60CC(2) of the Act.
As regards the benefit to these children of having a meaningful involvement of each of their parents in their lives, what is presently clear is that:
a)Neither parent is having a meaningful involvement in the lives of the three eldest children;
b)The father is having no meaningful involvement in the life of the four younger children who are in the mother’s care; and
c)There is a significant issue as to the protection of both the mother and all children from physical or psychological harm as a consequence of exposure to abuse, neglect or family violence (based on the mother’s evidence).

Family Violence

The obligations imposed upon the Court, when allegations of family violence are made, are significant. The Court is obliged pursuant to section 67ZBB to consider, at the first available opportunity, what orders, if any, might be necessary for the protection of parents and children from family violence. It is to be noted in that regard that the Court must consider whether orders are necessary to protect any person, but particularly children, from such behaviour.
The mother’s evidence is that there has been significant family violence throughout the relationship of these parties. The mother deposes that this family violence has occurred in the presence of the children or such of them as have been with the parties at any given point in time. The evidence suggests, albeit presently unanswered and untested, that such family violence has occurred both in Australia and in Lebanon.
Thus, there may be significant difficulties in obtaining evidence with respect to the total spectrum of allegations that are raised. However, the obligations under section 67ZBB are profound and significant, and are so for good reason.
The mother’s allegations of family violence, clearly fall within, indeed they catalogue, that which is illustratively defined by section 4AB as “family violence” and also extend to and amount to allegations of abuse.
The definition of abuse in section 4 of the Act makes clear that abuse includes psychological harm being occasioned to a child through exposure to family violence. On the mother’s evidence, there is a real concern that this has occurred and a real risk that it may occur again in the future.
In those circumstances, some real caution must be exercised both towards the making of extended orders on an ex parte basis and the impact of this upon the father’s right to due process as well as, and balanced against, the need for protection of the mother and these children.
The risk to the children arises, on the mother’s evidence, not only from exposure to family violence and, thus, the children’s abuse by such exposure, but also their removal from the Commonwealth of Australia and, thus, the potential for psychological harm to these children through further disruption in their care arrangements and separation from one if not, in fact, both of their parents.
The Court is obliged to ensure that children receive adequate and proper parenting and that parents fulfil their duties. It would not be a fulfilment of any parental responsibility for the four youngest children to be removed again from the Commonwealth of Australia. That is not to suggest that their travelling backwards and forwards between the country of birth of their parents and, thus, an important element of these children’s cultural identity, is harmful to them. Far from it. However, for the children to be left, against and notwithstanding the objections of their mother, in the care of paternal relatives and the mother, forced to return to Australia or forced to return to Australia without the children, and, thus, these children being separated from their caregiver, in the case of the four younger children with respect to whom I propose to make orders, would potentially be psychologically harmful to them.
The principles underlying the objects create rights for the children, including the right to know and be cared for by both of their parents, a right to spend time on a regular basis and communicate on a regular basis with both parents, that parents should share their duties and responsibility and agree about future parenting as well as the important right to enjoy their culture.
Whilst that right is not further expanded or defined, as the right to enjoy Aboriginal or Torres Strait Islander culture is – and appropriately so – I am satisfied that the specific elements of that right as set out with respect to Aboriginal and Torres Strait Islander children can and should be considered in relation to these children, although that is, in reality, a matter for primary determination. It is also to be noted, lest it be criticised, that the care arrangements for the children by that care being provided by members of paternal family is not by and of itself viewed as inappropriate. That is not my intention.
While section 61F of the Act applies specifically to Aboriginal and Torres Strait Islander children and, thus, the Court is mandated to have regard to kinship obligations and child-rearing practices of Aboriginal and Torres Strait Islander people, I am satisfied that one can analogously have regard to, and should have regard to, such factors in relation to care arrangements for these children, being clearly from a Lebanese/Arabic background.
However, there is no evidence before me that suggests that it is either appropriate or inappropriate and, thus, the criticism is not made at this time. It will be dealt with appropriately in due course and when there is more abundant evidence. The criticism that arises perhaps is that which flows from the significant allegations of family violence and abuse. Family Violence is never appropriate.
The mother suggests that she has not been a willing participant in establishing the care arrangements that have applied for the three eldest children, they, since 2008 having lived with one or more paternal relatives in Lebanon and, at times, in the absence and exclusion of their parents and/or their siblings. This is suggested to be a further manifestation of the father’s coercive and controlling family violence.

Children’s Best Interests

The Court is then reminded by section 60CA that the child’s best interests are the paramount consideration in all that is done.
I must determine, pursuant to section 61DA of the Act, whether the presumption of equal shared parental responsibility applies and, if it does apply, determine whether it is rebutted. I am satisfied that I need not make any order with respect to parental responsibility at this time by reference to section 61DA(3).
I do not propose to deal with the substantive aspects of parenting arrangements for these children, but purely to address and respond to the risks that are raised as real and apparent with respect to the children, being:
a)Exposure to family violence;
b)Removal from the mother’s care and the arrangements that have been put into place for their care; and
c)The potential removal of the children from the Commonwealth of Australia and the father removing himself from the Commonwealth of Australia. That, especially the father removing himself, will render the proceedings nugatory and make it difficult, if not impossible, for the mother to appropriately prosecute any application for relief as regards the three elder children.
Having determined that further and more extensive relief will not be granted on an ex parte basis does not obviate against the obligation, however, to consider the mandatory pathway.
On its face, clearly and as an interim proceeding, the presumption cannot apply. The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that a parent is engaged in family violence or abuse. The mother suggests that, that is so. However, I am concerned that the evidence is unchallenged and untested as the proceedings are ex parte. Thus I prefer to proceed, as already noted, on the basis of subsection (3), these being interim proceedings, in determining that it is inappropriate in those circumstances for the presumption to apply.
That being so I am not mandated to consider equal or substantial and significant time before any other time arrangement but, in any event, make clear that:
a)I would propose in any event to consider all time arrangements at large and consider same simultaneously and by reference to section 60CC and by reference to section 65DAA(5) of the Act; and
b)I do not propose to proceed to deal with or determine substantive issues with respect to time or care arrangements, (at least not directly).
The relief that is sought by the mother can be addressed appropriately by section 68B or section 114 of the Act. The orders that are sought by the mother, to the extent that I propose to deal with the relief sought in the Application in a Case, is injunctive relief suggested to relate to the children’s best interests and their need for protection.
Section 68B permits the Court to exercise jurisdiction and grant injunctions considered appropriate for the welfare of children, including injunctions for personal protection, restraining a person from entering or remaining in a place of residence or other specified area, and an injunction of broader terms within the ambit of subsection (2) being “…in any case in which it appears to the court to be just or convenient to do so”.
I accept that the injunction precluding the father’s departure from the Commonwealth of Australia or removing the children from the mother’s care or their school or home pending hearing of the balance of the Application in a Case falls within that power for the reason above.
I thus intend to proceed on that basis but in doing so am conscious that I must still consider the matters set out in section 60CC.
The injunctive power in section 114 of the Act is somewhat broader and is not specifically connected to the welfare of children, although there is nothing to suggest that it cannot be applied for that purpose. Section 114 is founded in the matrimonial causes power. It again, gives the Court the power to injunct a person from being upon or entering certain premises, as well as orders for the protection of a person or a marital relationship or property.
I am satisfied that those sections or either of them is sufficient bases for the relief that is sought.
In turning to section 60CC(2), the primary considerations require that I commence with a consideration of the benefit of the children having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm.
The latter is prioritised over the former by subsection (2A).
I am satisfied that I need go no further than the allegations of family violence. At this point they are allegations on an ex parte basis. However, they are allegations of the most extreme and profound family violence.
In any event, the benefit to the children of having a meaningful relationship with both of their parents is difficult to determine at this time, save and except that the father has not, on the mother’s evidence, taken any step to have any engagement or involvement with the four children presently in her care at any time since returning to Australia. There is no basis to suspect that the father is not aware of how to contact the mother or the children, they living at the home of her parents at which the father has previously attended.
Thus, to the extent that there may be a benefit to the children of a meaningful relationship or may be a benefit which is not outweighed by the need to protect the children from physical or psychological harm as a consequence of exposure to family violence, I am satisfied the father has obviated its consideration through his inaction.
In turning to the additional considerations.

Views

The four children are of fairly tender years. There is no evidence, in any event, as to their views and those views would be far from dispositive. I am happy to accept, however, that the children would have a desire to remain together and to live together and interact with each other. Something which they and their other siblings have been deprived at various points in their lives.

Nature of the relationship with the children with each of their parents and other persons

The children, on the mother’s evidence, have a primacy of attachment to her. Whether that is so or not cannot be determined at this interim and ex parte stage. However, the children clearly and importantly have a relationship with each other.

The extent to which a parent has taken or failed to take the opportunity to participate in decision making, spend time or communicate with the children

The father, as indicated, has failed to take any active steps to participate in decision making with respect to or communicate with the children since returning to Australia in March.
Prior to the 2012 amendments, subsection (c) was contained within subsection (4) of section 60CC and which directed the Court to also consider the extent to which a parent had interfered in the other parent’s capacity to participate in decision making, spend time or communicate with the child. I accept that consideration is still relevant.
Clearly, the above applies to the father’s actions as alleged as regards the three elder children.
Also, prior to the 2012 amendment, subsection (c) obligated the Court to consider the extent to which each parent had facilitated the other’s relationship with the children and had demonstrated an attitude supportive of same. Clearly, that is, on the mother’s evidence, a criticism of the father.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

The evidence would suggest that the father makes no contribution financially or otherwise to the children’s care and upkeep. Indeed, on the mother’s evidence the father’s contribution to the children’s care and upkeep has largely been to insist upon certain behaviours of the mother, including remaining in Australia for the birth of at least one, if not two, of the children for the purpose of obtaining financial benefit through payment of a baby bonus and/or returning to Australia at different times, and thus effecting separation between mother and children and, more importantly, between various of the children, for the purpose of ensuring the ongoing entitlement to Centrelink benefits. Those matters, whilst peripherally connected to the children’s best interests in that they require financial support, would appear to be anything other than firmly rooted in a concern for their welfare.

Likely effect of change, including separation from either parent or other child

I am satisfied that it would be disastrous for these children to again be separated from each other or separated from the care arrangements presently in place at least for the brief period until the matter can come back before the Court. The children have had, on any view, little stability and for the few weeks until the matter can come back before the Court, they should have it.

Practical difficulty and expense

I incorporate herein section 65DAA(5), namely:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

It is not known how far apart the parents live as the father’s present whereabouts are not known.
The parent’s current and future capacity to implement an arrangement for the children spending time between their parents is untested. However, clearly, there are other concerns raised that if the father were to spend time with the children or any of them, that he may seek to remove them permanently both from the mother’s care and the jurisdiction.
The parents have little, if any, capacity to communicate or, more importantly, resolve difficulties through such communication.
As already indicated, I am satisfied the impact upon these children of further separation from each other and departure from the Commonwealth of Australia obviates against anything other than the granting of the portions of relief sought by the mother to which I have alluded.

Capacity of each of the children’s parents and other persons to provide for the children’s needs, including their intellectual and emotional needs

Certainly, the actions which are alleged to have taken place, as recited above, regarding the children, or various of them being left in the care of relatives willingly or unwillingly for the purpose of addressing Centrelink entitlement issues would appear to be founded in anything other than a zealous desire to ensure the children’s best interests are met fully and completely, including through their remaining together to provide emotional support and to pursue important sibling relationships.
However, the mother’s capacity in meeting and responding to the children’s needs at this time, including her somewhat brave actions (if one accepts her allegations) at Melbourne Airport, in distracting the father so that she could seek assistance from customs officials and Australian Federal Police, would suggest that I can have some confidence in her capacity which is perhaps not readily apparent, albeit only the mother’s material is before the Court, in the case of the father.

Maturity, sex, lifestyle and background of the children

These are very young children who deserve some settled, stable arrangement. For them to continue living together in the one household for a few weeks until the matter can next come before the Court, I am satisfied, outweighs and is more important than other considerations such as the father being given notice of the limited orders that are to be made which will not affect the rights or entitlements, if they might be so described, of the parents, as no order allocating parental responsibility or determining who will spend time with, communicate with or live with the children will be made, purely restraints to protect and preserve the children’s stability.

Aboriginality

The children are clearly not from an Aboriginal or Torres Strait Islander background.
The children are from a Lebanese/Arabic background. That is also a culture of real importance to both parents and the children and which will need to be fully and properly explored in due course.

The attitude to the children under the responsibilities of parenthood demonstrated by each parent

There are potentially criticisms of each parent in this regard, particularly the comings and goings to address Centrelink issues which have caused the children to be separated from each other repeatedly over the last seven years. However, to the extent that the mother has alleged an extraordinary level of family violence, coercion and control in her relationship with the father, complicated by the family dynamic that exists and precedes their marriage, the criticism clearly is more firmly directed towards the father.

Family violence

There are significant allegations of family violence, and the Court must appropriately, and as mandated by section 67ZBB of the Act, respond thereto, and thus the restraints that are sought will be made.

Family violence orders

There are none.

Whether it is preferable to make orders that will be less likely to lead to future proceedings

I am satisfied that if the father or the four children presently in Australia or any of them were removed from the Commonwealth of Australia, that would most likely lead to further proceedings, particularly applications for substituted service, applications on an undefended or ex parte basis and far more complex, costly, (both financially and emotionally), proceedings and proceedings which could not possibly be determined as appropriately or as expeditiously as these proceedings warrant. Indeed, if the father were to leave the Commonwealth of Australia, I am satisfied the mother’s application for the return of the three eldest children would be entirely frustrated and rendered nugatory.
For those reasons I am satisfied that portions of the relief sought by the mother on an ex parte basis are appropriate and compelling and thus make Orders as follows.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 2 July 2014

[2014] FCCA 1333

28 April 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Stay of Proceedings

Standing