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Father seeks Time with and a Watchlist Order Made to Prevent Mother from Moving Children Outside Australia, Mother Claims DV

Enami & Farag [2021] FCCA 1401 (15 April 2021)

Mother opposes the father's application to spend time with their children.  The father claims that the mother is making false allegations against him because he does not cooperate with the mother's desire to relocate to UK with their children.  The mother alleges family violence against the father. 

Facts:

The parties cohabited in 2005, married in 2007 and separated in 2010 when the Mother relocated with W, their eldest child. The father initiated Hague Convention proceedings.  The Mother and W then returned to Australia and the Father’s parents and W resumed to live together as a family.  In 2020 the Mother, the Father, the three children and the Paternal Grandparents relocated to Australia.  The Father lived between Country B and Australia and would reside in Country B for a period of four or five months in each year when he would live with his family and cohabit as man and wife with the Mother of his children.  The Mother left the former matrimonial home on 25 January 2021.  She contacted the police who took out an intervention order on her behalf and a final intervention order was made on 29 January 2021 when the Father was represented but without admission.

The Father sought orders for a watch list order to prevent the children leaving Australia and orders for time with the children.  The Independent Children's Lawyer made an oral application with the Court to transfer the matter at the Family Court of Australia in circumstances where the matter is already a live international relocation.  The solicitor for the Father, Mr MacDonald, and the solicitor for the Mother, Mr Ng, both agree that the matter should, in administration of the business of the Federal Circuit Court and the Family Court be transferred to the Family Court of Australia.  The Registrar listed the matter before the Court and noted that the Department of Families Fairness & Housing are still investigating allegations of family violence against the Father.  The Registrar views that the matter needs the guidance of a family consultant.  The Independent Children's Lawyer informed the Court and the parties that it was premature for the Court to consider the Father's application since the Department of Families, Fairness and Housing had not completed its investigation.

Issue:

Whether or not it is in the best interest the children to spend time with their Father. 

Applicable law:

Family Law Act 1975(Cth), ss 60CA60CC - provides that the Court, in making an order, should determine what is in the child's best interest considering the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Analysis:

The Father's case is that the Mother's family has always strongly opposed the union of the Mother and the Father, that they are conspiring to make false allegations if he does not cooperate with the relocation of the Mother to the United Kingdom with their children.  The Mother's affidavit provides a long history of a violent relationship with the Father in which both she and the children have been repeatedly and continuously subjected to significant violence and abuse at the hands of the Father. 

In assessing the risks of these allegations to the children if these allegations were true, children are likely to be very traumatised by being presented with the Father either in the presence of the Paternal Grandparents or at a supervised contact centre.  If the Father's allegations turn out to be true my orders are an injustice to the Father and a continuation of a process of alienation and manipulation of the children which is significantly contrary to their welfare.

Conclusion:

The Court, in balancing the two risks presented by the parties, have concluded that the risk of harm to the children of time with the Father at this point in time is the greater risk to them.  Still, a Watchlist Order is made in regard to the children so that the children cannot be removed from the Commonwealth of Australia, which is a fear that the Father has.  This order ceases to have effect 2 years after the date on which it is made.  The Court ordered the matter to be transferred to the Family Court of Australia to be listed on a date to be advised by that Registry.  The children X born in 2009, Y born in 2011 and Z born in 2017 ('the children') live with the Mother.  The Father and paternal grandparents be and are permitted to communicate with the children (and not the Mother) by letters, cards (in English) and gifts to the children by provision of same to the Independent Children's Lawyer and if appropriate will forward same to the Mother's solicitor for the Mother to provide/read to the children.

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