Ahmad & Hadi
[2020] FamCA 1041
•7 December 2020
FAMILY COURT OF AUSTRALIA
| AHMAD & HADI | [2020] FamCA 1041 |
| FAMILY LAW – JURISDICTION – Whether the Family Court of Australia has jurisdiction to make parenting orders – Where there are ongoing parenting proceedings overseas – Consideration of ss 69E and 111CD of the Family Law Act 1975 (Cth) – Whether the child is habitually resident in Australia – Where habitual residence is to be determined at the date of the relevant hearing – Where the evidence suggests the child is not habitually resident in Australia – Where there is no basis upon which this Court may exercise jurisdiction for a Commonwealth personal protection measure in relation to the child – Application dismissed. |
| Family Law Act 1975 (Cth) ss 69E, 111CC, 111CD Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 |
| Alfarsi & Elhage [2016] FamCA 428 Bunyon v Lewis (No. 3) [2013] FamCA 888 Duckworth & Jamison (2014) 51 Fam LR 471 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 Sun & Long [2019] FamCA 3 Zaro & Zan [2019] FamCA 4 |
| APPLICANT: | Mr Ahmad |
| RESPONDENT: | Ms Hadi |
| FILE NUMBER: | SYC | 7560 | of | 2018 |
| DATE DELIVERED: | 7 December 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns (via video link) |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 3 July, 11 August and 30 November 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Moutasallem |
| SOLICITORS FOR THE APPLICANT: | Malik Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Katsinas |
| SOLICITORS FOR THE RESPONDENT: | Kalpaxis Legal Pty Ltd |
Orders
The father’s Initiating Application filed 21 November 2019 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahmad & Hadi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: SYC 7560 of 2018
| Mr Ahmad |
Applicant
And
| Ms Hadi |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed 21 November 2019, Mr Ahmad (“the father”) sought final and interim parenting orders in relation to the parties’ only child, X, born … 2017, and hence presently three years of age (“the child”). Ultimately, by her Further Amended Response to Initiating Application, Ms Hadi (“the mother”) sought orders, in substance, dismissing the father’s Initiating Application for want of jurisdiction on the part of the Family Court of Australia.
On 18 December 2019, I ordered that the question of whether the child is habitually resident in Australia, so as to give this Court jurisdiction (“the preliminary issue”) be tried in advance of all other issues in the proceedings, and heard that matter over three days in 2020.
On 30 November 2020, I reserved my decision in relation to the preliminary issue. This is that decision and the reasons for it.
Background
The father was born in Pakistan on … 1981, and hence is presently 39 years of age. He is a medical professional by profession. He migrated to Australia in 2011, and has lived here ever since.
The mother was born on … 1986 in Pakistan, and hence is presently 34 years of age. She is also a medical professional.
The parties had an arranged marriage, which was solemnised in a religious ceremony in Pakistan on … 2012, and in a legal and cultural ceremony on … 2013 in Pakistan as well. The parties then moved to Australia later that month.
The parties’ relationship experienced difficulties, and the mother says that the father was controlling of her and physically violent towards her. The father denies such behaviours. It is not necessary to resolve that conflict between the parties in determining the preliminary issue.
The father says that by 2016, he had become aware that the mother had had relationships with at least another four men during the marriage. For a period, the parties then lived apart.
In 2017 the mother fell pregnant with the child, who, as I have said, was born on … 2017. Also present at the child’s birth in Australia was the maternal grandmother, who was visiting from Pakistan.
Neither the prospect, nor the actuality, of the birth of the child improved the parties’ relationship, which by December 2017 was in its terminal stages.
In December 2017, the father signed a passport application for the child, although the parties are not in agreement as to the circumstances behind the father agreeing to sign it.
The parties negotiated in relation to the termination of their marriage, and the mother’s proposal to take the child back to Pakistan. The parties are in heated disagreement as to what was agreed in relation to the latter, most notably whether they agreed to the child’s indefinite return to Pakistan. At all events, on 25 January 2018, the mother, child and maternal grandmother left Australia to travel to Pakistan. The child was not quite then two months old.
Since then the child has only lived in Pakistan. There is a lack of independent evidence as to his living arrangements there, but ultimately nothing turns upon that, other than perhaps the credibility of the mother. That is because no matter what the child’s living arrangements are, it is plain that since 26 January 2018, when the child arrived in Pakistan, he has without exception remained living there. The father has not seen the child at all since 20 January 2018.
On 28 January 2018, the father sent three messages to the mother telling her that he was divorcing her. It seems that this is a necessary precursor to a legal divorce in Pakistan. There is no evidence of the father ever again communicating directly with the mother.
On 30 March 2018, the mother submitted the relevant documents to a court in Pakistan so as to divorce the father. The divorce was ultimately ordered on 24 July 2018.
On 24 April 2018, the mother returned to Australia, albeit without the child. She has since then intermittently travelled backwards and forwards between Pakistan and Australia to spend time with the child.
On 26 May 2018, the father commenced proceedings in the Family Court of City C in Pakistan, seeking parenting orders in relation to the child. For present purposes, it is suffice to say that these proceedings did not result in orders for the father to spend time or communicate with the child.
On 26 November 2018, the father first commenced proceedings in the Federal Circuit Court of Australia. Somehow or other, at about this time the father managed to have the mother made the subject of an Airport Watch List Order. On 7 December 2018, pursuant to that order, the mother was stopped from leaving Australia.
Next, on 12 December 2018, the father’s Australian parenting proceedings were brought on before a judge of the Federal Circuit Court. The mother sought the lifting of the Airport Watch List Order. Not only was that order made, but the father’s proceedings were, it seems, dismissed by the Federal Circuit Court judge as an abuse of process, although her Honour’s reasons for judgment were not in evidence before me.
Also on 12 December 2018, the father, who at the time was in Pakistan, and had been agitating his custody litigation there, discontinued those proceedings. Instead, he laid a complaint with Pakistani police that the child had been kidnapped by the maternal grandfather. The ensuing police investigation resulted in no intervention by them, nor in any charges being laid. Anxious that the father may seek to abduct the child in Pakistan, on 18 December 2018, the mother herself commenced parenting proceedings in the City C court, and sought and procured from it orders restraining the father from attending upon the maternal grandparents’ home, and seeking to forcibly remove the child.
The father then responded to the mother’s application, contending that the Pakistani courts in City D, rather than City C, had jurisdiction over the matter. On 7 October 2019, that jurisdictional contention was dismissed by the City C court.
Since then, there have been various iterations of proceedings in Pakistan, and various orders made from time to time, including interim parenting orders in the mother’s favour. At the time of the hearing before me, the City C proceedings remained extant, and although apparently supposed to have been heard in early 2020, have been unable to proceed due to the Covid-19 pandemic.
Next, on 21 November 2019 as I have previously indicated, the father commenced further proceedings in the Cairns Registry of the Federal Circuit Court of Australia. On 3 December 2019, a judge of that Court transferred the proceedings to this Court, and on 16 December 2019, my chambers advised the parties that I wanted to hear submissions as to whether the Family Court of Australia has jurisdiction, given the provisions of s 111CD(1)(e) of the Family Law Act 1975 (Cth) (“the Act”). After hearing from the parties on 18 December 2019, I ordered the trial of the preliminary issue.
The COVID-19 pandemic intervened however, in that the mother relied upon affidavits from family members in Pakistan, which is not a signatory to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, and whilst the father wished to cross-examine them, the pandemic precluded those witnesses being available for cross-examination for instance, by travelling to the Australian Embassy in Pakistan. Ultimately, as time began to pass, the father determined not to require the Pakistani witnesses for cross-examination, although I recognise that the usual result of that, namely that their evidence should be taken as unchallenged, should not apply here.
Currently, both the mother and the father are employed as medical professionals in Australia, with the father being employed in Western Australia, and the mother, employed in New South Wales, is in the course of qualifying as a medical professional.
The child remains living with maternal family members in Pakistan.
The preliminary issue
The preliminary issue arises by reason of ss 69E and 111CD of the Act. Section 69E(1) provides as follows:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection(2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.”
Section 111CD(1) relevantly provides as follows:
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
…
(e) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child…
The relevant Convention being referred to in s 111CD(1) is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the 1996 Convention”).
It is not in contention that, in his current Australian parenting proceedings, the father is seeking a Commonwealth personal protection measure, and it was similarly uncontroversial that Pakistan is a non-Convention country for the purposes of s 111CD, as it is not a signatory to the 1996 Convention. It is likewise not in contention that both parents, and the child, are all Australian citizens, and at least one of the parents of the child was present in Australia when those proceedings were commenced.
An argument was somewhat faintly pressed by the father to the effect that s 111CD was not engaged in this case. That was based on s 111CC of the Act, which provides as follows:
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.
Section 111CD falls within the same subdivision of the Act as s 111CC.
The father’s argument was founded upon the decision of Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), where Foster J held that the facts of that case did not raise an issue as to whether a court, as opposed to a competent authority of a non-Convention country, had jurisdiction to take measures directed to the protection of the person of a child (at [60]). Here, however, the issue plainly does arise, in that there are extant proceedings in Pakistan, and no party contended that the City C court seized of the matter was not a competent authority. Further, the mother by her Further Amended Response filed 30 June 2020, explicitly raised the jurisdictional issue. Alfarsi is plainly distinguishable. I am satisfied that s 111CD of the Act is engaged.
In that eventuality, both parties correctly identified that the next issue is whether the child is habitually resident in Australia.
During submissions I raised with the parties the point in time which s 111CD(1)(e) requires habitual residence to be determined, by reference to three possibilities. The first was the date when the father commenced these proceedings. The second was the date of the determination of the preliminary issue. The third was the date when the making of any Commonwealth personal protection measure was being contemplated.
The father contended, by reference to the term “relevant day” in s 69E of the Act (defined in s 69E(2) as being the date of the commencement of proceedings) that it was when the father filed these proceedings on 21 November 2019. The mother contended that it was the date of the determination of the preliminary issue.
There appears to be no High Court or Full Court decision directly on this point, although a number of first instance judgments support that it is the date of the determination, rather than any other time, that is relevant (see Bunyon v Lewis (No. 3) [2013] FamCA 888 at [185]–[189] per Bennett J; Sun & Long [2019] FamCA 3 at [50] per McClelland DCJ, and my earlier decision of Duckworth & Jamison (2014) 51 Fam LR 471 at [32]. I am conscious that Baumann J in Zaro & Zan [2019] FamCA 4 at [32] seemed to adopt the date of the child’s departure from Australia as the relevant time, however no reasoning for that conclusion appears in his Honour’s decision, and it seems that the issue was not agitated in that case.
Ultimately I am persuaded that the proper construction of s 111CD requires habitual residence to be determined at the date of the relevant hearing. Particularly, such a construction is more aligned to the apparent purpose of the provision, namely that child related litigation should be determined in the place where they are habitually resident. It could not promote that objective to have the parenting arrangements for a child who was habitually resident in Australia at the commencement of the proceedings, but perhaps many years later, when incontrovertibly habitually resident elsewhere, determined in Australia.
Is the child habitually resident in Australia?
Relevant legal principles
In Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”) at [31]–[38], albeit not in the context of the 1996 Convention, but rather the Convention on the Civil Aspects of International Child Abduction 1980, the Full Court discussed the notion of habitual residence as follows:
31.The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in [LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”)]. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22.To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
(footnote omitted)
32.In Re B (A Child)(Habitual Residence: Inherent Jurisdiction), Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57.We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact …
33. Returning to LK, the High Court said:
23.Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Purpose and intention
28.Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29.First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
…
34.… No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.… to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
(emphasis added)
34.In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”). The High Court said:
44.… As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
35.The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening), AR v RN (Habitual Residence) and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
36. Crucially, the High Court went on to say in LK:
45.Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)
37.It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
38.In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
(Footnotes omitted)
Relevant facts
The mother contends that the father agreed to the child leaving Australia to reside indefinitely in Pakistan. The father says that he permitted the child to travel with the mother to Pakistan only on a temporary basis, and thus there was never any mutual intention that the child’s place of residence would change from Australia to Pakistan. That said, in light of Padwa, neither party contended that the issue of intention was determinative of the question of habitual residence.
Both parties appeared to accept that, as at 25 January 2018, the child was habitually resident in Australia. Whilst I am prepared to also proceed on that basis, it seems to me that such a status could only be entirely derivative of the parent’s habitual residence, as on one view the High Court held in LK at [27].
A considerable body of evidence bore upon the parties’ intentions, some even pre-dating the child’s birth. For instance, on 21 September 2017, the father, whilst in Pakistan, transferred $8,000 to the mother’s bank account. Its description in the bank statement was “Furniture and Car [the father].” The mother says that is was payment to her for her furniture and motor vehicle, the latter of which the father had, she says, agreed to sell to a friend, intending that the mother would, after the child’s birth, not need a car as she would be returning to Pakistan. I must say the objective evidence falls well short of supporting such a conclusion.
However the father’s explanation for the transaction is equally unsatisfactory. Under cross-examination he explained it thus:
[COUNSEL FOR THE MOTHER]: Sir, you did sell the furniture, and you did sell the motor vehicle, isn't that right?
[FATHER]: No. Absolutely not.
[COUNSEL FOR THE MOTHER]: The reason that you deposited that money is that you had an expectation then of selling the car and the furniture, isn't that right?
[FATHER]: No.
[COUNSEL FOR THE MOTHER]: So, why would you put in the transaction details “furniture and car”?
[FATHER]: Yes, that's the question, absolutely.
[COUNSEL FOR THE MOTHER]: That is the question, yes?
[FATHER]: Yes, so this is the question. So, the money she's deposited which you referred like last time, okay, the thousand dollars and all those money, okay, so I have $7000 with me, okay, in my account. Which she did that. And she - I used to pay her back. I have $2000 which she sent me like there was saved with me, okay. And, when I bought the car, okay, I told her that I have your $2000 in my account and I shall pay the rest of $7500 by myself. Would you agree that if I used your dole $2000 to buy the car or you want that back? She said okay, that's fine, you are already contributing that, so, you can use my $2000, that's it. Okay. And same thing for the furniture. When we moved to new house, okay, she said that I would like to contribute in buying all the new furniture. So, she did that, okay. Later on, when I went to Pakistan, their family fought the allegation the same type of the embarrassing statement on me that I used to take the money from her, okay. So, this transaction was done when I was in Pakistan. Okay? This was not done anything like anything was sold. I will provide you the actual receipt of the Motor Vehicle 1 which was sold in January when she left Pakistan. So, I saved her all the contribution. Because they're used to put embarrassing statement on me that I take the money from her. So, whatever she contributed, whatever I had extra, and I still gave her - actually it was $6000 I gave her extra $2000 as a good gesture. So, all those contribution price - contribution by her for the furniture and the car - it was $6000 in total and I still gave her two thousand extra. Just for her lending and others in Pakistan. I made this direction from Pakistan. So, the money for the Motor Vehicle 1 and furniture means that whatever the contribution you take - because her parents started like - giving me the - like, embarrassing allegations on me that you paid so much. And so, I paid her back, okay, you take your contribution back. And I still deposit two extra thousand dollars.
(Transcript 3 July 2020, p.39 lines 4–37)
Somewhat oddly, he claimed that he was able to in fact sell the car on 29 January 2018, to a friend. This, of course, was only four days after the mother flew to Pakistan. In cross-examination of the father, there occurred the following exchanges:
[COUNSEL FOR THE MOTHER]: What a coincidence though, sir, that you sell the car to someone who you've known for a long time; isn't that right?
[FATHER]: Because - okay. So he came to me, okay, and he said that, “Do you want to sell the car?” Okay. So I did not sold the car at that time. Okay? It was just that he came to me, he said, like, okay, my wife has gone. Okay? I don't know when she comes. Okay, you want to buy it? And he said, “I want to buy it.” And - okay, in September 2000 - 21, okay? I gave her - I was contributing up to 2000 because, and I told you because disgrace me that you took the money, and I gave her- all the money to her, and gave extra $2000. Neither the furniture was sold, nor the car was sold at that time. Till she left to Pakistan, then Mr G came to me and there was no price arrangement for that.
[COUNSEL FOR THE MOTHER]: Sir, you just said a moment ago that “I don't know when she's coming back.” Wasn't it the case that she was coming back in a couple of months' time?
[FATHER]: That’s what she said, and that's what I said that. I don't rely on her statement. That I don’t know whether she will come or not, but that's what she said, and that’s why I gave up my communications with her, that she kept on changing.
(Transcript 3 July 2020, p.104 line 45 to p.105 line 13)
The father further explained that he sold the mother’s car because “I have to move to Town H, okay, so I can’t take everything … what would I do with a second car?” (Transcript 3 July 2020, p.105 lines 22–28). Precisely what the mother was supposed to do for a car when, on the father’s evidence, she was to return to Australia in a couple of months’ time, is quite unclear.
Also connected with the sale of the car is the evidence of text message communications between the parties on 18 December 2017 relating to the disposal of the mother’s furniture as follows:
[The mother]: I am not going to rent any home while I am away …
Would you like to keep my things with you until I come back .. or should I give them away because if I don’t rent a house I don’t have any place to leave them ..and I plan to take a long term leave as baby needs my care ..
[The father]: I am extremely sorry, I won’t take anything with me related to you. Arrange a garage sale , donate to someone or ask the rubbish collector to take these away. Or send them to Pakistan.
[The mother]: That’s alright
I will sort something out
Thanks
(Mother’s affidavit filed 31 January 2020, exhibit SE12) (Emphasis added)
Whilst counsel for the father stressed the mother’s statements “while I am away” and “until I come back”, as I pointed out, the father’s statement “send them to Pakistan” suggests knowledge – or at least anticipation – of the mother’s intention to stay there. I do not overlook the mother’s concession in cross-examination that in those messages she was giving the father the impression that she was coming back to Australia (Transcript 11August 2020, p.56 lines 30–31), but he may not have in fact been so persuaded. Further, I must say that, having had the 18 December 2017 text message exchanges drawn to her attention on 3 July 2020, the mother’s explanation subsequently proffered in her affidavit of 11 August 2020, namely that she was intending to travel back to Australia to retrieve her belongings, rather than returning to live here, seems strained.
There are other communications between the parties which bear upon their understanding of the mother’s intentions. Whilst I do not intend to traverse them all, a significant exchange occurred by text messages on 18 and 20 January 2020 as follows:
18 Jan 2018, 4:51pm
[The mother]:
Thanks for everything…please do not come to Brisbane…we are too stressed and we want to spend this time alone ..I do not wish to see you again before I leave …bye.
20 Jan 2018, 9:36am
[The father]: No worries I won’t come. Convey my thanks to [the maternal grandmother] for all her efforts she did despite the poor scenario. I hope baby is happy. That’s the best thing you did. Enjoy your new life.
(Mother’s affidavit filed 31 January 2020, exhibit SE12) (Emphasis added)
The father’s explanation under cross-examination, that his statement about the mother’s “new life” was a reference to her being a mother, struck me as, at best, an improvisation.
More significantly, some post 26 January 2018 events shed light – albeit necessarily retrospectively – on what the parties understood, or at least anticipated, at the point when the child departed for Pakistan.
To my mind, the most important is that, despite the father’s evidence that he believed the mother to be intending to return to Australia with the child after a couple of months, when that did not occur, he did not raise it with her.
More, when the mother sent him a series of text messages on 1 April 2018, in which she said “Don’t you even miss your baby?”, “I know you hate me and I deserve it”, “[b]ut what type of person you are?”, “I mean, that’s your baby..do you have any human emotions at all,” the father did not reply. His explanation for that failure was, frankly, unbelievable. Particularly during his cross-examination there occurred the following exchange between the father and myself:
[HIS HONOUR]: But, I guess, the inevitable question is this, why didn't you just respond to her message of 1 April 2018 and say I'm really missing the baby. When do you expect to be back?
[FATHER]: She - while we were - we was, during the last day, her behaviour was not cooperative at all. Like, I was trying my best because …..I actually gave up on her that there is no use to talk to her. Only instruction will come from her mother. That whatever she decides it will happen like this. Actually I thought, like, communication because I tried my best even before they left: even since I asked her to take me to goodbye. So I actually - - -
[HIS HONOUR]: Well, I don't mean to be unkind, doctor, I don't mean to be unkind, but is your answer to my question this, I didn't ….
respond to asking her when she was coming back to Australia or when she thought she would be back with my son because I had given up on communicating with her?
[FATHER]: Yes.
[HIS HONOUR]: Just let me take a note of that, please?
[FATHER]: Yes, I will comply with that, and I prefer to proceed legally in every communication.
[HIS HONOUR]: But if I look back to 20 January you seem to be communicating well with her?
[FATHER]: Like, that's how I - I text her even though her mother was not, like, very supportive to me. Okay. But I don't write these bad words. I say, okay, thank you, whatever happens it's okay. Thank you. That's all. So it's not like that everything was, like, very beautiful. It is my expression that I don't say anything back, okay. Still I …..to her mother that whatever you think.
[HIS HONOUR]: You see, Mr Katsinas is going to tell me ….
that the reason why you didn't respond to the - I assume this will be his submission, that the reason why you didn't respond at all to the 1 April 2018 text message and the reason why you didn't ever ask the mother why she's not coming back or when she was coming back to Australia with your son, and the reason why you commenced proceedings in Pakistan rather than Australia was all because you didn't ever expect her to return. I assume that's what you're going to tell me, Mr Katsinas.
MR KATSINAS: Precisely right, your Honour. Yes.
HIS HONOUR: What do you say to that, doctor?
[FATHER]: Well - - -
[HIS HONOUR]: You've got two options. You've got two options. Your explanation which is … that I had given up on communicating with her. There was no point to it therefore I commenced proceedings in Pakistan where the child is because that's what I was told to do. That's the one explanation?
[FATHER]: Yes.
[HIS HONOUR]: It may not be the …and on the other hand you've got another explanation that's being proffered which says you knew that she was leaving the country forever with the child and that's why you didn't ask her to return, or when she was returning, and that's why you commenced proceedings in Pakistan rather than Australia. I've got to weigh up those two options?
[FATHER]: Yes, sure. Okay. So - - -
[HIS HONOUR]: And why do you say I should prefer yours?
[FATHER]: Okay. In Australia, I kept on proceeding. I contacted the Department of the Complex Case - the passport department because I was not given any information about the baby's passport number, even. I- I sent them an email. I have those emails with me and I …..what is the way to get my son back in Australia. Okay? And I was told that if the baby is gone, you don't have any control-that if, like, the people were saying me the same - the jurisdiction - jurisdiction thing - and so I also started in Pakistan. I kept on even trying in Australia. I applied one affidavit. I will check those exact dates and..... prepared one affidavit where I intended to get my son back but my …..affidavit was not, like, even listed. Like, they just did not hear that and, then, I - I kept on proceeding in Pakistan. Then, I applied for another one and that was rejected because of, like, she gave her - her reason and, then, I give this one. So I was actually trying to get my son back in any case, like, whether it has been decided in Pakistan or whether in Australia and I've been doing this for the last two and a half years at different times. Like, whenever I .....
(Transcript 3 July 2020, p.69 line 5 to p. 70 line 25)
That passage adverts to another significant fact, which I have already canvassed when traversing the chronology, namely that the father’s response, when he learnt that the child was in Pakistan but the mother had returned to Australia, was not to commence proceedings in the country which he now says was then the child’s habitual residence, but rather to commence proceedings in Pakistan. None of his affidavit material filed in those Pakistani proceedings (annexed to the father’s affidavit filed 21 November 2019) suggested that the child was being kept in Pakistan contrary to the parties’ agreement.
Rather, in that material the father complained that the mother took the child to Brisbane on the pretext of collecting the child’s passport there (something now not contended by him), and when there, the mother “informed [the father] on telephone that she is leaving along with [the child] for Pakistan” (again, not a contention which the father now presses). Of course, on the father’s current case, there would have been nothing surprising in the mother telling him that; the father says he already knew that she and the child were travelling to Pakistan. What is significantly missing in the father’s Pakistani affidavits is any allegation that the child had remained longer in Pakistan than the father had expected, or contrary to the parties’ agreement.
Moreover, some other parts of that affidavit of the father seem quite untrue – the claim at paragraph 4 for instance, that he “tried his level best for Ms Hadi and to keep the marital tie intact” is quite inconsistent with his three text messages divorcing the mother on 28 January 2020. Worse, his claims for custody were founded on asserted risks to the child arising from the fact that “[the child] is not being looked-after, fed and nourished…” (at paragraph 6), which is seemingly quite false.
Finally, I note at paragraph 10 of that affidavit the father specifically said:
That the said minor son is residing in City C therefore, this Honourable Court has the Jurisdiction to entertain the petition and adjudicate upon the matter.
which is quite inconsistent with his current case.
That said, the mother’s evidence in the Pakistani litigation is equally dubious. At times she has represented, in response to the father’s applications to have the child delivered to the court, that the child was in Australia, or with an uncle, rather than her parents. Her explanations for saying such things in her material before me, seem rather facile.
I regret to say that I am disinclined to act upon the uncorroborated assertions of either party; the father’s affidavit evidence, and his rambling answers in cross-examination, and the mother’s adamant affidavits, but equally un-focussed oral responses to questions, do not sit well with much of the contemporaneous material.
Nonetheless, the father’s conduct after January 2018, and particularly his failure to inquire of the child’s return, and his commencement of proceedings in Pakistan in May 2018, persuade me that, at the very least, what transpired was no surprise to him.
The mother’s future intentions, at least as declared in her affidavits in these proceedings, are to in due course, have the child return to live with her in Australia. However she is vague as to when that might be, although she would like him educated here. In part, her imprecision is possibly because of her unchallenged evidence at paragraph 65 of her affidavit filed 31 January 2020 as follows:
65.Considering my funds have been depleted in dealing with the parenting in both Australia and Pakistan, I cannot see how in the near future I could afford to sponsor my parents, to relocate to Australia to live with me. I cannot relocate to Australia with my son without the assistance of my parents, as I have no family members living in Australia with whom I could obtain assistance in the event that I need to work.
The father says that I should find that the child’s presence in Pakistan is temporary. I am not so persuaded. In any event, even if I were, it would not preclude him nonetheless presently being habitually resident there.
Ultimately, what stands out above all else in this case, is the incontrovertible fact that, post January 2018, the child has only lived in Pakistan and predominantly, if not entirely, with the maternal grandparents.
According to Padwa, which plainly binds me, the question is, from the child’s perspective, where is he presently habitually resident. The father says it is Australia because:
·He never consented to the child relocating to live in Pakistan, (however, even if so, I am not persuaded he did not anticipate that when the child left on 25 January 2018. His post January 2018 conduct seems entirely consistent with him being at least unsurprised at the non-return of the child, albeit surprised at the return of the mother);
·The child’s arrangements in Pakistan have been to a degree fluid, (however I am satisfied he has at least mostly, and perhaps only, lived with the maternal grandparents, and has a quite settled routine there);
·The mother’s intention is to ultimately return the child to Australia (although, as I have just noted, unless her parents can also migrate, that seems unlikely).
On the other hand, the mother says:
·The father agreed to the child relocating to live in Pakistan (however I have doubt there was any express agreement);
·The child has a settled routine in Pakistan (which I accept);
·That it is ridiculous to contend that a child who is now three years old, and has spent not even two complete months of his life in Australia, is habitually resident here, rather than Pakistan, where he has spent virtually all of his life to date (which does rather seem to smack of common sense);
·That although the father commenced proceedings in Australia on 21 November 2019, they were dismissed as an abuse of process given the concurrent Pakistani proceedings, and the current Pakistani proceedings – in which the father is an active protagonist – remain ongoing, and are ready for trial;
·That the Pakistani courts have determined that they are an appropriate authority to deal with the child’s parenting arrangements, (which seems incontestable).
To my mind, the mother’s arguments are the more convincing. I am satisfied that the child is habitually resident in Pakistan or, put in the converse, not satisfied that he is habitually resident in Australia. I give particular weight to the fact that for more than 34 months of his 36 months of life to date, the child has lived a relatively settled existence in Pakistan, and during that 34 months, has never once visited Australia.
Standing back, and viewing the question of residence from the child’s perspective, he would have no memory whatsoever of Australia, whether of a person, place or event. His only memory of such things would be in Pakistan. His principal care-givers are all in Pakistan. His routine is in Pakistan. If he were now to return to Australia, he would not be able to speak English, recognise any place, or fit into an established routine. All of those considerations strongly speak against him being habitually resident in Australia.
Given that the child is not habitually resident in Australia, under s 111CD(1) of the Act, there is no basis upon which this Court may exercise jurisdiction for a Commonwealth personal protection measure in relation to him.
To cover the eventuality that I am wrong in concluding that the date at which habitual residence needs to be determined is the date on which I resolve the preliminary issue, but rather is 21 November 2019, the only factual difference is that the child was then one week shy of two years of age, whereas he is now a little over three.
In my view, the child’s habitual residence of Pakistan had been acquired by 21 November 2019. The additional year of his residing there only serves to confirm it, not establish it. Put conversely, I am not satisfied that the child was habitually resident in Australia some nearly 22 months after he left, when not yet two months old.
I should acknowledge that there are some mildly disturbing aspects to this conclusion, not least of which being that an Australian citizen child, of Australian resident and citizen parents, is not amenable to the jurisdiction of Australian courts. More, and rather counter-intuitively, it seems odd that the jurisdiction over him will therefore be exercised by a Pakistani court, by virtue of the ostensible effect of the 1996 Convention, to which that country is not a signatory.
However in reality, that outcome is the result of s 111CD of the Act, which I am not free to ignore or subvert. Whether that provision in its terms was necessitated by the 1996 Convention is a matter I will leave to others to consider; suffice to say it is the binding statutory law of Australia, and no challenge to its constitutionality was advanced before me.
Finally I should also note that in the hearing of the preliminary issue, no alternative argument was raised that these proceedings were an abuse of process, or, given the pending Pakistani proceedings, that they should be stayed under the forum non conveniens doctrine, or that they were precluded by the Federal Circuit Court orders (seemingly) dismissing the father’s earlier Australian parenting proceedings as an abuse of process, and these reasons certainly do not determine those matters.
Conclusion
Since the Court is without jurisdiction to make parenting orders in relation to the child, the father’s Initiating Application filed 21 November 2019 must be dismissed. I will so order.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 December 2020.
Associate:
Date: 7 December 2020
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