Child custody battle in Australia: A mother's attempt to reconnect with her daughter after separation
Sharif & Yamin [2022] FedCFamC1F 958 (7 December 2022)
A couple from Country B moved to Australia and had a child, X, who later went into the father's care. The father claims that the mother abandoned X, but it's unclear if he facilitated communication. Despite various attempts to re-establish the mother-daughter relationship, X's views are compromised, and counseling and supervised time with the mother have been challenging to arrange.
The mother and father both moved to Australia from Country B with their families at around the same time. They married in 2008 in an arranged marriage when the mother was 15 years old. The couple separated in 2011, and X initially lived with her mother. The father obtained orders for full custody of X in the City E Magistrates' Court, which were later discharged by consent in the Federal Circuit Court.
The parties were then ordered to have equal shared parental responsibility for X, but there were disputes regarding care arrangements, and further orders were made in November 2012. In 2013, X was placed in her father's care, and there has been no meaningful contact or relationship between X and her mother since then. The mother left Australia for Country B in 2014 and returned in early 2014 after marrying Mr. G.
The father claims that the mother has made no genuine attempts to see or communicate with their child, X. He also asserts that the mother abandoned X and did not want anything to do with the child. However, it is not clear from the father's statements that he and his family made positive attempts to facilitate time between X and the mother. X has come to believe that her mother abandoned her and that the mother now only wants to cause X distress and difficulties.
Despite attempts to re-establish the mother/daughter relationship through various orders, including professional supervision and family members' involvement, none of the attempts were successful, and X refused to attend. A family consultant has noted that X has been influenced to reject her mother and that her views are likely compromised. The consultant recommended that X attend therapeutic counselling and that the parents complete a Parenting After Separation Program. Orders were made for the child to engage in ongoing therapeutic counseling, but the order was not complied with. Finally, further orders were made for X to engage in therapeutic counselling and supervised time with the mother, but the father's difficulty in arranging appointments made the process challenging.
Applicable law:
Family Law Act 1975(Cth) ss 60CC - pursuant to which on an interim basis this matter turns primarily on:
(a) the benefit to X having a meaningful relationship with both of her parents;(b) the risks to X inherent in the proposals advanced; and
(c) X’s views.
Banks & Banks (2015) FLC93-637 - provides that if matters with respect to some s 60CC factors are determinative of the child’s best interests on an interim basis, it is unnecessary to explore the balance of the considerations.
Analysis:
The court heard evidence from Mr. C that X would benefit from having a relationship with both her parents. However, the court expressed concern about the strength of X's views and the potential risks associated with imposing orders against her wishes. Additionally, the court noted that there is no current evidence from a court child expert about the impact on X's mental health if she is removed from her father's care and placed in her mother's care.
The court dismissed the mother's application to change X's residence and stated that this matter will be examined more fully at a final hearing, with updated information from the experts engaged. The court also considered the father's application to travel to Country B and informed that the father plans to marry a woman there and his family plans to accompany him on the trip. The father said he would not travel to Country B if X was unable to travel with him, and he would not leave X with anyone and travel there himself. The court considered that travelling to Country B would provide X with the opportunity to connect with her paternal family, culture, and heritage, but also noted that the Department of Foreign Affairs and Trading have put out a travel warning regarding Country B.
The court stated that it is unclear whether the father owns real estate in Australia or is employed here, and what ties he has to Country B. The court accepted that X's travel to Country B would enrich her sense of self and identity, but considering the high risk associated with travelling to Country B, the court did not make any decision and stated that this matter will be considered further at a later hearing.
Conclusion:
The order stipulates that all applications for final orders will be adjourned for hearing before the Honourable Justice Carter on June 8-9 and 13, 2023 at 10:00 am as a three-day matter, and that the evidence in chief of all witnesses will be given by affidavit. The order sets out specific requirements for filing and serving documents by the applicant and the respondent, as well as for the Independent Children's Lawyer. All parties are required to file and serve a case outline document and a trial plan, as well as a statement on the costs incurred to that date. The order also specifies that the parties and the child must attend interviews with a Family Consultant and that an updated family report be prepared to address specific matters related to the child's welfare or best interests.
Case: Sharif & Yamin [2022] FedCFamC1F 958
Judgment of: CARTER J
Counsels:
Solicitor for the Respondent: Ms Bramham, Bramham Lawyers
Counsel for the Independent Children's Lawyer: Joy Elleray
Solicitor for the Independent Children's Lawyer: VM Family Lawyers