AHMADI & FLITTON

[2018] FamCA 630

FAMILY COURT OF AUSTRALIA

AHMADI & FLITTON [2018] FamCA 630

FAMILY LAW – JURISDICTION – Where the father seeks his application to be dealt with on a summary basis – Where the father concedes that the Court has jurisdiction but seeks that the Court decline to exercise its jurisdiction in the best interests of the child – Where the child was born in Country B – Where the Court received expert evidence about the legal system of Country B – Court finds that it would not be in the best interests of the child to deal with the application on a summary basis.

FAMILY LAW – CHILDREN – With whom a child lives – Where the father seeks for both children to live with him in Country B –Where the mother seeks for both children to live with her in Australia – Where the mother unilaterally removed the youngest child – Separation of siblings – Where the children have been separated from each other and the other parent for 22 months – Order made for the father to have sole parental responsibility for the eldest child and for the eldest child to live in Country B with the father – Order made for the mother to have sole parental responsibility for the youngest child and for the youngest child to live in Australia with the mother.

Family Law Act 1975 (Cth)

Killam and Loeng (2015) FamCAFC 41
Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80
Starr & Duggan [2009] FamCAFC 115
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Ahmadi

RESPONDENT: Ms Flitton

FILE NUMBER: MLC 11257 of 2017

DATE DELIVERED: 31 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 2-3 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Australian Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Harris

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

Orders

1. All existing orders in relation to the children:

   ·X born on … 2014 and

   ·Y born on … 2016

   ("the children") are discharged.

2. 2.1      The father has sole parental responsibility for the child X.

   2.2The father will keep the mother informed of all decisions which he makes in relation to the long-term care, welfare and development of the child X.

3. 3.1      The mother has sole parental responsibility for the child Y.

   3.2The mother will keep the father informed of all decisions which she makes in relation to the long-term care, welfare and development of the child Y.

4. The child X will live with the father.

5. The child Y will live with the mother.

6. The children will communicate with the mother and father each Saturday between 4.00 pm and 5.00 pm Country B time and at such other times as agreed by the parties.

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 Ahmadi & Flitton 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 SYDNEY

FILE NUMBER: MLC 11257  of 2017

Mr Ahmadi

Applicant

And

Ms Flitton

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Ahmadi ("the father") and Ms Flitton ("the mother") are the parents of two children:

   ·X born in 2014 (3) and

   ·Y born in 2016 (2).

   These proceedings concern parenting orders in respect of the two children.

2. X and Y are currently separated, with X living in Country B in the Middle East with the father and Y in Australia with the mother.  The father sought orders for the return of Y to Country B and the mother proposed that X live with her and Y in Sydney.

3. In his Initiating Application filed on 31 October 2017 the father sought the following orders:

   1.The mother forthwith and within 24 hours deliver the child [Y] born … 2016 to the father.

   2.The mother deliver the child's current passport to the father at the same time as returning the child.

   3.        The father be permitted to remove the child from Australia.

   By this Initiating Application the father sought that the proceedings be dealt with on a summary basis but, ultimately, the competing applications proceeded to trial in the ordinary course with the benefit of an order for expedition.

4. At the commencement of the trial, counsel for the father indicated that he sought orders in the following terms:

   ...

   Contact and residence

   1.That the parties have equal shared parental responsibility for the children [X] and [Y] (collectively referred to as "the children");

   2.That the mother immediately return [Y] to [Country B].

   3.That the children live with the father.

   4.That in the event the mother is within [Country B], the children spend time with the mother as follows:

   a.Every alternate Thursday from the conclusion of kinder garden / creche / school, or if the children aren't attending kinder garden / creche / school from 3:30PM, until 5:00PM on Sunday in the first week;

   b.Every week from the conclusion of kinder garden / creche / school on Tuesday or if the children aren't attending kinder garden / creche / school from 3.30PM, until 9:00AM or the commencement of school on Friday in the second week.

   c.In the event the mother is not within [Country B], the time in 4 a and b be suspended.

   International travel

   5.Four times per year the mother spend time with [Y] and [X] for a period of 14 days or as otherwise agreed in writing in [Country B].

   6.The mother must give as much notice as possible in writing to the father, but failing that, must provide the request in writing at least 42 days in advance of the date she wishes to depart Australia;

   7.That so far as practicable the periods the mother wishes to travel shall coincide with the children's school holidays.

   8.The father pay or cause to be paid all fares and expenses for the mother to travel by aircraft to and from Australia to [Country B] for the purpose of contact and the father pay the reasonable fares

   9.The father will may (sic) payment or cause the mother to have suitable accommodation in [Country B] in order to facilitate the time with the children

   Passports

   10.That the mother and father do all acts and things and sign all documents necessary to have [Y] issued with a new [Country B] passport.

   11.That the mother forthwith surrender and deliver up to the Registrar of the Family Court of Australia at Sydney all passports currently held by the mother relating to the children and such passports be retained by the Registrar and not returned to the mother without prior written consent of the father or further Order of the Court.

   12.That the father or his agent in writing be permitted to obtain from the Registrar of the Family Court the passports of the children as surrendered by the mother.

   13.That either by agreement, or by a court order, the father is to release the children's passports to the mother, and the mother forthwith again return the said passports to the safe custody of the father once the children are returned by the mother to [Country B].

   Telephone / Skype / Facetime contact

   14.That the mother or father have telephone or skype contact with the children when they are in not in (sic) their respective care as follows:

   a.        Each Tuesday from 5.00PM until 5.30PM [Country B] time;

   b.        Each Thursday from 5.00PM until 5.30PM [Country B] time;

   c.        At any other time as agreed by the parties

   The mother remaining in [Country B]

   15.That in the event the mother elects to remain in [Country B] the father ensure that the mother be provided with, and (sic) the fathers full cost and expense, accommodation that will properly facilitate her to remain in [Country B] and properly care for the children.

5. At the conclusion of the trial, I requested that counsel for each of the parties provide a Minute of Orders sought in the event that I were to determine that X should continue to live in Country B with the father and Y in Australia with the mother.  Counsel for the father then submitted the following Minute:

   1.That the Father and the Mother have equal shared parental responsibility for the children [X] born … 2014 (“[X]”) and [Y] born … 2016 (“Y”).

   2.        That [X] live with her Father.

   3.        That [Y] live with his Mother.

   4.That [X] spend time with her Mother and [Y], and [Y] spend time with his Father and [X] as follows:

   4.1On four occasions per year, such occasions to coincide as far as practicable with the children’s school holidays, for a period of 14 days in [Country B].

   4.2The Mother to give to the Father as much notice of her proposed dates as possible (but no less than 42 days in advance of the day she proposes to depart Australia).

   4.3The Father to pay or cause to be paid all fares and expenses required for the Mother and [Y] to travel by aircraft to [Country B] for the purpose of spending time with the Father and [X] for the first two occasions.

   4.4The Mother and Father equally share the cost of fares and expenses required for the Mother and [Y] to travel by aircraft to [Country B] for the purpose of spending time with the Father and [X] for second two occasions.

   4.5The Father to pay for the Mother to have suitable accommodation in [Country B] for the periods referred to in 4.1 above. 

   4.6The Father and Mother spend time as agreed or, failing agreement, as follows:

   Occasion 1:1st half     Father with [X] and [Y]

   2nd halfMother with [X] and [Y]

   Occasion 2:1st half      Mother with [X] and [Y]

   2nd halfFather with [X] and [Y]

   Occasion 3:1st half      Father with [X] and [Y]

   2nd halfMother with [X] and [Y]

   Occasion 4:1st half      Mother with [X] and [Y]

   2nd half Father with [X] and [Y]

   with the midpoint being determined by calculating the midpoint between the time and date on which the Mother’s inbound flight arrives in [Country B] and the time and date on which the Mother’s outbound flight is scheduled to depart [Country B].

   5.That the Mother and the Father communicate with the children as follows:

   5.1Each Saturday between 4.00 pm and 5.00 pm [Country B] time and at such other times as are agreed.

   5.2PROVIDED THAT such calls are to provide an opportunity for the Father to speak to [Y], for the Mother to speak to [X] and for [Y] and [X] to speak to each other.

   6.That, as far as it is possible, the Mother facilitate [Y] learning the [Country B] language, enrol [Y] in a Islamic school and attend Islamic occasions in a … Islamic place.

6. By her Response to Initiating Application filed on 7 December 2017 the mother sought the following orders:

   1.That the mother has sole responsibility of the care, welfare and development of the children [X] ("[X]"), born … 2014, and [Y] ("[Y]"), born … 2016, ("the children").

   2.That the children live with the mother.

   3.That within 14 days of this order, the father do all acts and things to bring [X] to the Commonwealth of Australia and:

   3.1That immediately upon booking the child's flight to Sydney, the applicant father shall notify the respondent mother by email of the travel itinerary for the child and provide confirmation of the child's booked flight.

   3.2That the applicant father shall be solely responsible for the cost of the child travelling to Sydney in accordance with these Orders.

   3.3That the applicant father shall cause all of the child's current and expired passports in his possession, custody or control to be delivered to the respondent mother simultaneous with the child being delivered to the respondent mother in accordance with these Orders.

   3.4That in the event the applicant father fails to comply with these Orders, the respondent mother shall be at liberty to relist the matter on forty-eight hours' notice.

   4.That the father is restrained from removing the children, [X] ("[X]"), born … 2014, and Y ("Y"), born … 2016, from the Commonwealth of Australia.

   5.That if the father travels to Australia, the children are to spend time with their father as follows:

   a.Until [Y] reaches the age of 4 years, for up to 2 consecutive weeks per visit, with a maximum of 4 visits per calendar year as follows:

   i.Each week from 3.30pm until 6.30 pm, on Monday, Wednesday and Friday, and from 11.30am until 6.30pm on Saturday and Sunday;

   ii.With me in the vicinity in case [Y] becomes distressed.

   iii.With the changeover to occur at a location nominated by the mother in writing to the father from time to time;

   and with such additional time with [X] as agreed between the parties.

   b.When [Y] reaches the age of 4 years until [Y] commences school, for up to 2 consecutive weeks per visit, and a maximum of 4 visits per calendar year, as follows:

   i.Each week from 3.30pm until 6.30pm, on Monday, Tuesday, Wednesday, Thursday and Friday and from 9am until 6pm on Saturday and Sunday,

   ii.With the changeover to occur at a location nominated by the mother in writing to the father from time to time; and

   and with such additional time with [X] as agreed between the parties.

   c.When [Y] commences school, for up to 2 consecutive weeks per visit, and a maximum of 4 visits per calendar year,

   i.During school term on a Monday, Wednesday and Thursday from after school until 7pm, and on Friday after school until 4pm on Saturday;

   ii.One week during each of the school term holidays for the April, July and September school holiday period, on Monday, Wednesday, and Thursday from 10am to 5pm, and from Friday 10am until Sunday 10am

   iii.That the time in accordance with order 5 c) ii) is to occur on only one week of the school term holidays, by agreement between the parties, but failing agreement, in the last week of the NSW school term holidays;

   iv.Each week during the Christmas School Holiday period on Monday, Wednesday and Thursday from 10am to 5pm and from Friday at 10am until Sunday 10am, for a maximum of 2 weeks.

   v.That the time in accordance with order 5 c) iv) is to be for a 2 week period agreed between the parties, and failing agreement, for the last 2 weeks of the NSW school Christmas holidays.

   and with such additional time with [X] as agreed between the parties.

   d.That the father spending time with the children in accordance with order 5 c) is conditional on:

   i.The father spending time with the children in accordance with order 5 b) on 2 occasions in each calendar year, and

   ii.If order 5) d) i) is not complied with, then the father is to spend time with the children in accordance with Order 5 b).

   6.The father to spend the following additional special occasion time with the children if he is in Australia, as follows:

   i.On the children's birthday, from 2.30pm to 7pm

   ii.On Father's Day from 10am to 3pm.

   iii.From 10 am until 3pm on the day of Eid-ul-Fitr

   iv.From 10 am until 3pm on the day of Eid-ul-Adha

   v.From 10am to 3pm on the twenty-sixth day of Ramadan (the Night of Power) and

   vi.From 9 am until 3pm on the ninth day of Thul-hijjah (the day of Arafat).

   7.That any time that the father spends with the children in accordance with these orders is suspended on Mother's Day between the hours of 10am to 6pm.

   8.That the father be permitted to have Skype or telephone communications with the children once a week or as agreed between the parties, and any additional times as requested by the children, conditional on that if there are internet connection difficulties and the mother is unable to make or receive Skype calls to the father, that the children shall have telephone contact with the father.

   9.That unless otherwise provided for in these orders, the father is to collect the children from a location nominated by the mother in writing to the father from time to time at the commencement of his time and the father is to return the children to the same location at the end of his spending time with the children.

   10.That the father be at liberty to forward SMS, letters, email, mail and any gifts to the children, and that the mother be permitted to open the items or read them to the children until they are at an age when they are able to read themselves.

   11.That within 14 days of the children's enrolment at any preschool or school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child's school reports.

   12.The mother to provide the father with the following:

   a.Names and addresses of the children's treating doctors and dentists

   b.The details of the children's extra curricula activities

   c.An authority to any health professionals or person concerned with the children's education authorising the father to communicate with those persons in relation to the children's care or education

   13.That each party notifies as soon as possible the other if either of the children is seriously ill or is to be admitted into hospital at such times as the children are living with or spending time with that party.

   14.That neither party denigrate the other or members of the other's family to the children in the presence or hearing of the children.

   15.Until further order each party, [Mr Ahmadi], born … 1981, and [Ms Flitton], born … 1992, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children [X] ("[X]"), born … 2014, and [Y] ("[Y]"), born … 2016, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist until the children each attain the age of 18 years.

7. In response to my request for a Minute of Order Sought in the event that I determined that there should be no change to the children's current primary residence arrangements, counsel for the mother submitted a document in the following terms:

   1.That the mother has sole responsibility of the care, welfare and development of [Y] (“[Y]”), born … 2016.

   2.That [Y] live with the mother.

   3.That the father has sole responsibility for the care, welfare and development of [X] (“[X]”), born … 2014.

   4.That [X] live with the father.

   5.That the father [Mr Ahmadi], born … 1981, his servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of [Y], born … 2016, from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing his name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Airport Watch List unless and until the Court orders its removal.

   6.The father is restrained from applying for a new or replacement Australian or Country B passport or other travel document for [Y], born … 2016.

   7.If the father travels to Australia with [X], [X] is to live with the father and [Y] is to live with the mother and the children are to spend time together with each parent as agreed between the parties or in lieu of agreement as follows:

   7.1.Until [Y] reaches the age of 4 years, on a 5 day repeating cycle as follows:

   7.1.1. Day 1 – both children with the mother from 2.30pm to 5.30pm.

   7.1.2. Day 2 – both children with the mother from 2.30pm to 5.30pm.

   7.1.3. Day 3 – both children with the father from 2.30pm to 5.30pm.

   7.1.4. Day 4 – both children with the father from 2.30pm to 5.30pm.

   7.1.5. Day 5 – rest day.

   7.2. When [Y] reaches the age of 4 years until he commences school, on a 5 day repeating cycle as follows:

   7.2.1. Day 1 – both children with the mother from 12 noon to 5.30pm.

   7.2.2. Day 2 – both children with the mother from 12 noon to 5.30pm.

   7.2.3. Day 3 – both children with the father from 12 noon to 5.30pm.

   7.2.4. Day 4 – both children with the father from 12 noon to 5.30pm.

   7.2.5. Day 5 – rest day.

   7.3. When [Y] has commenced school, during NSW state school term as follows:

   7.3.1. Day 1 – both children with the mother from 3.30pm to 7pm.

   7.3.2. Day 2 – both children with the mother from 3.30pm to 7pm.

   7.3.3. Day 3 – rest day.

   7.3.4. Day 4 – both children with the father from 3.30pm to 7pm.

   7.3.5. Day 5 – both children with the father from 3.30pm to 7pm.

   7.4. When [Y] commences school, during NSW state school holidays, on a 7 day repeating cycle as follows:

   7.4.1. Day 1 – both children with the mother from 10am to 5pm.

   7.4.2. Day 2 – both children with the father from 10am to 5pm.

   7.4.3. Day 3 – both children with the mother from 10am until 5pm on Day 4.

   7.4.4. Day 5 – both children with the father from 10am until 5pm on Day 6.

   7.4.5Day 7 – rest day.

   8.That the father spending time with [Y] in accordance with order 7.2 is conditional on the father spending time with [Y] in accordance with order 7.1 on at least 2 separate occasions before [Y] turns 4 years of age, and if the father has not done so, then the father spend time with [Y] in accordance with order 7.1 until [Y] commences school.

   9.To effect order 7, the changeovers are to occur at a location nominated by the mother from time to time and are to be communicated to the father by text or Whatsapp or other instant messaging system used by the parties no less than 24 hours before the proposed changeover.

   10.The arrangements for the children to spend time with each parent in order 7 are to occur during up to 4 periods of up to 14 days per calendar year, or as otherwise agreed.

   11.The parties are to notify each other of any change of mobile phone number and Skype id within 7 days of such changes occurring.

   12.The father to spend the following additional special occasion time with [Y] if he is in Australia pursuant to order 7, as follows:

   i.         On [Y’s] birthday, from 2.30pm to 7pm;

   ii.        From 10 am until 3pm on the second day of Eid-ul-Fitr;

   iii.      From 10 am until 3pm on the first day of Eid-ul-Adha; and

   iv.       From 3.30pm to 6pm on Layatul Qadar during Ramadan.

   13.Any time that the father spends with [Y] in accordance with these orders during Ramadan is extended until one hour after the fast is broken.

   14.Both:

   i.The father, [Mr Ahmadi], born … 1981; and

   ii.        [X], born … 2014

   are permitted to enter and leave the Commonwealth of Australia.

   15.That the father and mother be permitted to have Skype or telephone communications with the child not in their care:

   i.once a week on a Saturday between 4pm and 5pm [Country B] time, or as agreed between the parties; and

   ii.        any additional times as requested by the children,

   conditional on that if there are internet connection difficulties communication shall be by telephone not skype.

   16.That the father and mother be at liberty to forward SMS, letters, email, mail and any gifts to the child with whom they do not live, and that the other parent be permitted to open the items or read them to the child in their care until they are at an age when they are able to read themselves.

   17.That within 14 days of the children’s enrolment at any preschool or school each parent shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the other parent copies of all of each child’s school reports.  

   18.Each parent is to provide the other parent with the following from time to time:

   a.Names and addresses of the children’s treating doctors and dentists

   b.        The details of the children’s extra curricula activities

   c.An authority to any health professionals or person concerned with the children’s education authorising the other parent to communicate with those persons in relation to the children’s care or education

   19.That each party notifies as soon as possible the other if either of the children is seriously ill or is to be admitted into hospital at such times as the children are living with or spending time with that party.

   20.That neither party denigrate the other or members of the other’s family to the children or in the presence or hearing of the children.

1. In his Outline of Case document counsel for the father raised an issue whether the court has jurisdiction to determine the parenting dispute.  At the commencement of the trial counsel for the father conceded that the court has jurisdiction but submitted that the proceedings should not be entertained, having regard to the best interests of the children.

Background

1. The father was born in 1981 in Country B and is a citizen of that country.  The mother was born in 1992 and is an Australian citizen.  The parties met online in February 2013 and began to live together in Australia in April 2013.  They entered into Islamic marriage ceremonies in Sydney in mid-2013.  The mother converted to Islam in 2012, having first taken classes at a Muslim school in Sydney.

2. Unbeknown to the father, the mother was legally married to Mr C at the time of both Islamic ceremonies with the father.  The mother and Mr C married in 2010 in Sydney and separated on 3 January 2011.  According to the mother Mr C filed an Application for Divorce on 14 June 2017 and those proceedings are still pending, for unknown reasons.

3. In June 2013 the parties travelled to Country B and moved into an apartment next door to the home of the father's parents.  The father worked full-time and the mother spent considerable periods each day in the parties' apartment.

4. In 2014 the mother gave birth to a stillborn child.  The parties' daughter X was born in 2014 and their son Y in 2016.  The mother suffered a miscarriage with a fourth pregnancy later that year.

5. In August/September 2016 the mother informed the father that she wished to travel to Australia to sign documents related to an inheritance from her grandparents.  The mother lied to the father on this occasion, as her grandparents were alive in August/September 2016.

6. The father purchased tickets to Australia for the mother and the two children, with a nominated return date of 7 October 2016.  The mother departed Country B with Y on 25 September 2016, leaving X in the care of the father.  There was a dispute between the parties as to the reason why X remained in Country B with the father.  He maintained that X was unwell and the mother was concerned about her ability to care for two children during the flight.  The mother alleged that the father cancelled X's ticket and kept her to ensure that the mother and Y returned from Australia to Country B.

7. On approximately 5 October 2016 the mother informed the father by WhatsApp that she intended to remain in Australia with Y.  Thereafter the parties communicated sporadically and, in some of these messages, the mother indicated falsely to the father that she would return to Country B.  For example on 25 January 2017 the mother stated "I wanna come home".  In cross-examination the mother conceded that she lied to the father about her plans in these communications.

8. In June 2017 the mother told the father that she had lost her passport and required money to obtain a replacement, so that she could return to Country B.  The mother conceded in cross-examination that she lied to the father, because she had not lost her passport and had no intention to return to Country B.  The father sent money to the mother, in the belief that she would obtain a new passport and return to Country B with Y.

9. On 29 December 2016 the mother unilaterally took out Australian citizenship for Y.  She conceded that she burned his Country B passport, with her only explanation being "I don't know why, I just didn't think he needed it anymore".  The father was not informed or consulted about the destruction of Y's Country B passport or the application for Australian citizenship.

10. The father was unaware of the whereabouts of the mother and Y and still does not know their address.  He has provided money for their financial support from time to time.  The mother provided her address and the name of her then flatmate to the court pursuant to an order of a Registrar made on 16 November 2017.

11. The mother has consulted a paediatrician, Dr E, in relation to Y's developmental difficulties.  In a report dated 15 January 2018 Dr E offered these opinions and recommendations:

    1.        [Y] has global developmental delay.

    2.[Y] does not fulfill criteria for autistic spectrum disorder but has some behaviours which I think are related to significant expressive language delay.

    3.I would like to so some screening investigations to ensure [Y] has no underlying deficiencies of vitamin D, iron or thyroid which might be contributing to his delayed walking and issues with a global delay.

    4.I have organised for him to have x-rays of his lower limbs to exclude rickets.

    5.I have referred him to occupational and speech therapy at St George Community Health Services as I think the family would benefit from [Y] having these services.

    ...

12. For the past several months the parents and the children have communicated regularly by Skype.  Orders for Skype communication between the parents and the children were made a Registrar in Melbourne on 16 November 2017.  The father deposed to difficulties in communication between the mother and X, with the little girl crying frequently during these sessions.  The mother maintained that "the arrangements for [Mr Ahmadi] and I to see and talk to the children are working fairly well."

13. On 17 October 2017 the mother changed her surname from "[D]" to "Flitton", pursuant to the provisions of the Births, Deaths and Marriages Registrations Act 1995 (NSW).  The father contended that the mother did so to increase his difficulties in locating her and Y.  The mother denied that her intention was to increase the father's difficulties but declined to provide a reason.

14. The father commenced these proceedings by an Initiating Application filed in the Melbourne Registry on 31 October 2017.  On 16 November 2017 the proceedings were transferred to Sydney and expedited on 22 February 2018 by order of a Registrar.  The matter came before me for a First-Day Less Adversarial Trial on 26 April 2018 and I listed the proceedings for final hearing on 2 and 3 July 2018.

The evidence and witnesses

1. The applicant father relied on his affidavits affirmed on 10 September 2017, 14 December 2017 and 6 April 2018.  The father gave his oral evidence by electronic means from Country B.

2. The mother relied on her affidavits sworn on 31 May 2018 and 2 July 2018 and gave oral evidence by way of cross-examination.  The mother's second affidavit contained the first and only disclosure of her existing marriage to Mr C, at the time when she entered into Islamic ceremonies with the father.

3. I had the benefit of a single expert report dated 1 July 2018 in relation to relevant Country B law.  The author of the report was Mr F, an English academic and practising barrister.  Mr F prepared a supplementary document (Exhibit 4) when advised of the mother's marriage to Mr C, which addressed the effect of that additional information on the opinions contained in his report.  Mr F was not required for cross-examination.

Exercise of jurisdiction

1. On behalf of the father, it was submitted that the court should decline to exercise jurisdiction on the basis that "the mother has acted deceptively and dishonestly and in a manner that has compromised the best interests of the children".  It was submitted further that the mother did not permit consistent time and communication between Y and the father, nor by the children with each other, until orders were made on 16 November 2017.

2. It was contended on behalf of the father that in the best interests of the children, there should be an order for the immediate return of Y to Country B.  Counsel for the father submitted that the present situation is "analogous to cases involving an abduction from a non-Hague convention country".

3. Counsel for the father set out the basis for this submission as follows in his Outline of Case document:

   9.1The expert evidence will establish that a determination of such issues as this case has thrown up will be made in [Country B] having regard to the welfare of the children.

   9.2The parties had always intended to live in [Country B], to make that their home and the home of the children and to submit to the laws of that country.

   9.3The children will be living together with an opportunity to have a relationship with both parents.

   9.4It will assuage concerns about the conduct of the mother in bringing about an arrangement that is so obviously contrary to at least some of the primary objectives of the Act.

4. In ZP v PS (1994) 181 CLR 639 the High Court of Australia stated:

   In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum.  It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself

   ...

   It may be accepted that, generally speaking, unilateral removal of a child from one country to another is detrimental to the welfare of the child.  However, it is the duty of a judge to determine what the welfare of the child requires without regarding that question as being foreclosed simply because the child has been removed unilaterally from one country to another.

5. In the same case Brennan and Dawson JJ said:

   In determining an application for the speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child's permanent custody.

6. In Killam and Loeng (2015) FamCAFC 41 the Full Court referred with approval to the following passage in Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80:

   In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant.  But their relevance will depend upon the facts of the individual case.  If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned.  If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard ...

7. Mr F described the relevant legal system in Country B as follows:

   The Legal System of Country B

   7.[Country B] is one of the most traditional and conservative Islamic countries in the Islamic world.  It is one of the few countries in the Middle East in which theoretically the traditional Islamic law (Shari'a) rules continue to apply in their entirety.  The main courts in [Country B] are the Shari'a Courts although there are other judicial tribunals that operate in tandem with these courts.  In the area of personal status law, which is the law applicable to marriage, divorce, children, maintenance and inheritance, then the Shari'a Courts will have sole jurisdiction and will apply the traditional rules of Islamic law taken from the … School of Islamic law which applies in [Country B] ...

8. Mr F explained in his report that Islamic law "accepts two distinct relationships of care in respect of children" being custody ("hadana") and guardianship ("wilaya").  "Custodians" usually are female and "guardians" generally are male persons.

9. Mr F set out the rights and duties which attach to guardianship and custody in Country B.  He reported as follows:

   20.The right of guardianship belongs in the first instance to the father and generally lasts until marriage (for a girl) or majority and independence (for a boy).  It includes deciding where the child resides and having control of any property of the child.  The guardian will generally also act in relation to any marriage (particularly for a girl).  ...  The father, as guardian, is under an obligation to maintain his children even when they live away from him and are under the custody of their mother or other female relative ...

   Mr F continued as follows:

   21.Custody is the temporary right of a minor child to a woman's care and upbringing until Islamic law considers that the child has reached an age where this is no longer necessary.  It recognises that young children (if their parents are separated or divorced or their father is deceased) need to be brought up in a woman's care, which is generally their mother or a close relative of the mother ...

10. Mr F explained that "custodianship lasts until the age of 7 years of age in the case of both sons and daughters."  Mr F reported:

    [Country B] law considers that a child attains the age of discretion at 7 years of age which gives them an element of maturity ... [Country B] law permits a boy at 7 years of age to have a choice in deciding which parent to live with unless the Shari'a Court determines that it is not in his best interests for such a choice to be made or complied with.  The Qadi (Islamic judge) also has a general discretion in relation to custody by which he could extend the time of custody if he considered it in the best interests of the child.  These are the only and limited provisions where the Qadi may consider the general welfare or best interests of the child.  There is no overriding position which says that the Qadi must determine all issues of custody on the basis of the welfare or best interests of the child.  The Qadi will apply the fixed rules in relation to custody and guardianship and any concomitant rules, which are assumed and accepted to be ones that are in any event in the best interests of the child.  The Shari'a Court has in fact very little discretion or flexibility in relation to the application of the traditional rules.

11. Mr F reported that a custodian must satisfy certain conditions in order to obtain and retain her rights.  She must "have attained majority, must be sane and free from communicable disease".  A custodian may lose her rights if she remarries a stranger to the extended family of the father of the subject child.

12. Mr F explained that a custodian should not take on employment or any other activity "which detracts from her sole duty of looking after and bringing up the children".  A custodian must reside at a place determined by the father, which is close to his residence so as to enable him to exercise his rights of contact.  A custodian may not change a child's place of residence or remove him or her from Country B without consent of the father.  A custodian must be a Muslim and raise the children in the Islamic faith.

13. Mr F summarised the approach of Islamic law to children in Country B as follows:

    27.In summary, it must be noted that Islamic law as applied to children in [Country B] does not start from the general rule that the Shari'a courts must consider the welfare of the children as an overriding principle.  A Shari'a court in [Country B] would apply certain fixed rules (as indicated above) with very little room for discretion.  The Shari'a Courts might consider that these rules were an expression of the general welfare principle, but reference to a general welfare principle would not override their application except in very limited circumstances.

14. Mr F addressed the difficulties which the mother would face if she were to return to Country B.  He explained that a wife is under the control of her husband and has few rights to a judicial divorce.  Mr F reported that a divorced, non-Country B wife would be required to leave the country unless her former husband sponsored and supported her.

15. In response to a specific question Mr F reported as follows:

    Question 4:What are the range of possible orders a [Country B] court could make concerning the custody arrangements for the children of the parties and specifically would a [Country B] court permit the children to relocate to Australia with the mother and if so in what circumstances?

    37.This is outlined in the main text.  The children would fall under the guardianship of the father.  He has the right to determine where they live in [Country B] and has duties in relation to their upbringing and education.  If the parties were not divorced then the mother would be expected to live with the father and it would be very odd and difficult for her not to do so as she has no family in [Country B] to fall back on.  The father would control all her movements and residence and work.  In such a case the children fall under the custody of both parents.

16. The legal representatives for the parties informed Mr F of the mother's marriage to Mr C at the time of the Islamic ceremonies with the father.  He opined that the mother's conversion to Islam would nullify the earlier marriage.  That being so, the Islamic marriage would be valid for the purposes of Country B law.  Accordingly, the earlier marriage would not alter any of the opinions which he expressed in his report.  Mr F confirmed that:

    it would still be my view that for a single non-[Country B] woman to work or bring up her children as a divorcee in [Country B] would be extremely difficult if not almost impossible without the assistance and support of her ex-husband and his family.

17. There is no doubt that the mother acted unilaterally in removing Y from Country B and that it would be open to this court to make a summary order for his return to that country.  The countervailing factors are that the Shari'a courts in Country B would apply fixed rules of Country B law and that the mother would be in a position of considerable disadvantage to the father.

18. Mr F expressed a very clear view that there would be no enquiry into the best interests of the children in a Country B court.  He also gave clear evidence to the effect that the father could require the mother to leave Country B at any time of his choosing, by obtaining a divorce and withdrawing his support and sponsorship.

19. In these circumstances, I conclude that an order for summary return of Y to Country B would not be in the best interests of the children.  That being so, I consider that it is appropriate that this court exercise its jurisdiction to determine what parenting orders are in the best interests of the children.

Approach to these proceedings

1. In Starr & Duggan [2009] FamCAFC 115 the Full Court said of the approach to parenting applications involving relocation of a child:

   However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   ·first make findings concerning the relevant s 60CC factors;

   ·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and

   ·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

   Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child's best interests, including the proposal to relocate.

Section 60CC considerations

Section 60CC(2)

Section 60CC(2)(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children have been living separately from each other and their non-residence parent since X and Y were aged one year nine months and eight months respectively.  It seems to me that, inevitably, there would have been a deterioration in the quality and strength of the children's relationships with each other and their non-residence parent during this period of separation.

1. The father deposed that Y smiles and talks to him during Skype calls, which may suggest that the child may recognise him in a paternal role.  The father deposed that X frequently cries during her Skype calls with the mother and Y but there could be a number of reasons for this behaviour.  The mother deposed that the current arrangements for Skype contact work well for the children and parents.

2. In my view it is probable that the children could have a meaningful relationship with each of their parents only if they all live in the same place, especially having regard to the young ages of X and Y.  As indicated by the expert evidence of Mr F, the mother would face real difficulties if she returns to Country B and attempts to live independently of the father.  I consider it to be most unlikely that the mother would live again in Country B.  She expressed great reluctance to return to that country and concerns about her ability to support herself in that situation.  In my view, the mother's concerns as to her position in Country B were validated by the expert evidence of Mr F.

3. The father made no proposal to relocate to Australia.  He is a Country B citizen, whose family and employment are located in his country of birth.

Section 60CC(2)(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The mother made allegations of conduct on the part of the father which, if accepted, would constitute family violence within the statutory definition.  The father denied these allegations and there was no independent evidence to corroborate the mother's assertions.  It is thus difficult to make any findings as to the veracity of these allegations, particularly in light of the mother's admitted lies and deception of the father which must reflect adversely on her credit.

Section 60CC(3)

1. I will refer only to those considerations set out in section 60CC(3) which are relevant to these proceedings.  Some considerations are irrelevant, for example section 60CC(3)(h).

Section 60CC(3)(a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children are currently aged three and two and, obviously, are far too young for their expressed views to carry weight.  In any event, there was no evidence of any expressed views on the part of either child.

Section 60CC(3)(b)  the nature of the relationship of the child with:  (i)  each of the child’s parents; and (ii)  other persons (including any grandparent or other relative of the child)

1. There can be no doubt that the children's relationships with each other and the non-residence parent have been compromised by the lengthy period of separation since the mother took Y from Country B in September 2016.  I consider that it could reasonably be assumed that X has a strong and loving relationship with the father and members of the paternal family and, similarly, Y with the mother.

Section 60CC(3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i)  to participate in making decisions about major long‑term issues in relation to the child; and (ii)  to spend time with the child; and (iii)  to communicate with the child

1. The mother's actions have prevented the father from participating in decisions in relation to major long-term issues concerning Y.  I accept that she concealed the child's whereabouts from the father and acted unilaterally in respect of significant matters, for example, the destruction of Y's Country B passport and the application for Australian citizenship for the child.

2. The mother has not been able to participate in making major long-term decisions in relation to X since September 2016.  The reality is that unilateral and deceptive actions effectively created a situation where each of the children has been deprived of decision-making input into their lives by one of their parents.

Section 60CC(3)(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The mother meets Y's financial needs with government benefits and the father has contributed to his financial support from time to time.  The mother makes no contribution to the financial support of X.

Section 60CC(3)(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The changes proposed by each of the parents would bring the benefit of reuniting the siblings, who have now been separated for some 22 months.  The proposals of each of the parties would see the children being substantially separated from one of their parents, other than for holiday periods.

2. I have referred above to the evidence of Mr F as to the real and substantial difficulties which the mother would face if she were to return to Country B.  In effect, she would need to live with the father as his wife or face a situation of continual uncertainty and insecurity if he was prepared to sponsor and support her.  He could withdraw his support and sponsorship at any time of his choosing.

3. Mr F summarised the position of the mother, if she, the father and the children were all in Country B as follows:

   44.It may be seen from the above that if the children are returned to [Country B] then the mother may be awarded rights of custody over her children for a limited period, but only in the case that the parties were divorced, and it is difficult to see how she could continue to live in [Country B] given that the Mother is a non-[Country B] with no family in [Country B].  The Mother's exercise of her rights of custody under the Islamic law rules applied in [Country B] are limited to a greater extent than would be true in a non-Islamic country (such as Australia) and therefore could be seriously compromised if the father chose not to continue to support and sponsor her.

4. The mother gave evidence to the effect that she would accompany Y to Country B if she were ordered to do so by a court.  Even if she returned only for the limited purpose of delivering Y to the father, the mother still would be effectively be subject to his control.

5. Y has had contact with the father only by Skype since November 2017.  There was no evidence as to the likely effect upon him of a separation from the mother and placement in the full-time care of the father and the paternal family.  In my view it might reasonably be inferred that this experience would be traumatic for Y.  Similarly, I consider that it might reasonably be expected that X would be traumatised by separation from the father and paternal family and placement with the mother.

6. With the mother's history of dishonest and deceitful conduct, the father could well feel considerable concern at the prospect of X coming to Australia to spend time with her.  The mother may decide to approach a court in Australia, once X was in this country, and the father would be forced to remain here and resist any application for parenting orders.

Section 60CC(3)(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The distance between Australia and Country B means that there would be considerable practical difficulty and expense in the children spending time with each of their parents.  The father earns an income of US$2,000 per week and could afford to contribute to these expenses.  The father would have support from his family, if both children were placed in his care, and could continue with his employment.

2. The mother earns no income from employment and has few workplace skills.  Additionally she would have the care of two young children, if the court were to accede to her application.  The mother deposed that she is completing an on-line course in tourism, which she expects to finish in August 2018.  She deposed further that she does not intend to work "because of [Y's] health problems."  In my view, the mother has little prospect of obtaining gainful employment in the near future.

Section 60CC(3)(f)  the capacity of:  (i)  each of the child’s parents; and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs

1. There was little evidence as to the capacity of each of the parents to provide for the needs of the children.  I consider that the mother demonstrated a lack of insight into the emotional needs of the children when she separated them from each other and their father in September 2016.

Section 60CC(3)(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The children were born in an Islamic country, to parents who were practising Muslims.  Y has been uprooted from his Country B culture by the unilateral actions of the mother and placed into Australian society over the objection of the father.

2. In my view, there is a real risk that X and Y may not be able to communicate effectively with each other if they continue to live separately.  The father speaks English and comes from an educated family.  I consider it reasonable to anticipate that he would ensure that X learns and speaks the English language.

3. The mother maintained that she would arrange for Y to learn Country B but her lack of credit casts doubt upon this assurance.  It may be also that her financial circumstances limit her capacity to ensure that Y learns to speak Country B fluently.

Section 60CC(3)(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. In my assessment the mother's unilateral and deceptive removal of Y from the father and X reflects poorly on her attitude to the children and the responsibilities and duties of parenthood.  I take a similar view of the mother's failure to facilitate communication between Y and the father, prior to the Orders of 16 November 2017, and her unilateral actions in relation to his Country B passport and Australian citizenship.

2. The father has demonstrated an appropriate attitude to the children and the responsibilities and duties of parenthood by his provision of financial support for Y since his removal from Country B.  The father has seized the opportunity for regular Skype contact with Y since November 2017.

Section 60CC(3)(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Mr F opined that Australian orders would not be enforced in a Country B court.  He reported as follows:

   31.If a Foreign Court made orders in relation to the custody and welfare of a [Country B] child, these would not be enforced by any Shari'a court in [Country B] which would consider that it had sole jurisdiction in relation to personal status matters concerning the child.  Enforcement of foreign judgments is now within a new set of Enforcement courts but this change has affected commercial cases but not personal status cases.

Parental responsibility

1. In my view, the parties could not effectively share parental responsibility when they live in different countries.  The father would not necessarily be sufficiently familiar with conditions in Australia to make informed decisions and similarly the mother in relation to situations in Country B.  Additionally, distance would militate against the parties being able to make joint decisions which require a speedy determination.  In practical terms, I can see no way in which the parties effectively could hold equal shared parental responsibility.

2. Accordingly, I find that the presumption of equal shared parental responsibility is rebutted by evidence that such an outcome would not be in the best interests of the children.  Accordingly, I am not required to consider whether it is in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each parent.  I am at liberty to proceed directly to a determination of what parenting orders are in the best interests of the children.

Conclusion

1. Unfortunately, it seems to me that there is no outcome to these proceedings which would be beneficial to the children.  In reality, I consider that it is necessary to determine what result is likely to inflict the least damage upon X and Y.

2. I am of the view that it is likely that each child would be traumatised by a separation from the parent with whom he and she have lived continuously for the last 22 months, without any face-to-face contact with the other party.  It may well be that different considerations would have prevailed soon after the mother's unilateral removal of Y from Country B.  The fact is that I must deal with the situation of the children at the present time.

3. I have referred to the mother's difficulties in living again in Country B and to the fact that the father made no proposal to relocate to Australia.  Accordingly, a stark choice must be made and I conclude reluctantly that the children's best interests require that they remain separated from one parent and each other.

4. I see no utility in orders of this Court for the child X to spend time with the mother in Country B.  The expert evidence of Mr F set out clearly that any such orders would not be enforced by the courts of Country B.  Similarly, any orders of this court for X to spend time with the mother in Australia would not be enforced in Country B.

5. I will not make orders for the child Y to spend time with the father in Country B, having regard to the expert evidence as to the difficulties which the mother would face if she returns to that country.  Realistically, the child Y could travel to Country B only if accompanied by the mother at this stage of his life and I will not require her to return to that country.

6. In all of the circumstances, the only orders which seem to me to be appropriate would be for parental responsibility, residence and communication.  I appreciate that such orders would not be enforced by the courts of Country B.  If the father were to bring X to Australia, such orders may assist in hindering unilateral action in relation to that child on the part of the mother.  The manner of communication between the parties and the children was common ground.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 31 July 2018.

Associate: 

Date:  31 July 2018