Arterbury & Gujic
[2024] FedCFamC1F 88
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arterbury & Gujic [2024] FedCFamC1F 88
File number: SYC 166 of 2024 Judgment of: BRASCH J Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – CHILDREN – Welfare jurisdiction – Whether summary order to return the children to a non-Convention country is in their best interests – Order made. Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 67ZC, 69E, 111B, 111CD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.11
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996
Cases cited: Cimorelli & Wenlack [2020] FamCAFC 58
Eaby & Speelman (2015) FLC 93–654l [2015] FamCAFC 104
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80
In re L (Minors) [1974] 1 WLR 250
Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Karim & Khalid (2007) FLC 93-348; [2007] FamCA 1287
Killam & Loeng (2015) FLC 93-642; [2015] FamCAFC 41
Kwon & Lee (2006) FLC 93-287; [2006] FamCA 730
Pascarl & Oxley (2013) 49 Fam LR 364; [2013] FamCAFC 47
Randle & Randle [2011] FamCA 830
Salah & Salah (2016) FLC 93–713; [2016] FamCAFC 100
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 53; [1990] HCA 55
ZP v PS (1994) 181 CLR 639; [1994] HCA 29
Division: Division 1 First Instance Number of paragraphs: 118 Date of hearing: 16 February 2024 Place: Sydney, delivered in Brisbane Counsel for the Applicant: Mr Keserovic Solicitor for the Applicant: Unified Lawyers Counsel for the Respondent: Ms Reid Solicitor for the Respondent: Parker Family Law ORDERS
SYC 166 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARTERBURY
ApplicantAND: MR GUJIC
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The mother is permitted to forthwith remove the children X (male) born 2017, Y (female) born 2020, and Z (male) born 2021 from the Commonwealth of Australia.
2.To facilitate the children’s departure from the Commonwealth of Australia:
(a)The parties, through their lawyers, are to agree on a date and place for the children to go into the mother’s care, and failing agreement, at 10.00am Saturday 24 February 2024, at the car park of the Suburb B McDonalds, C Street, Suburb B; and
(b)The father is to provide the mother with the children’s passports and travel documents when the children go into the mother’s care.
3.The Court requests that from 10.00 am on 24 February 2024, the Australian Federal Police remove the names of the children, X (male) born 2017, Y (female) born 2020, and Z (male) born 2021 from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
THE COURT FURTHER ORDERS THAT:
4.Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
In an effort to give the parties a decision as expeditiously as possible, these are my oral reasons. If necessary, I will correct the transcript for grammatical error and amend to make the spoken word more amenable to reading.
BACKGROUND
The applicant mother, Ms Arterbury, and the respondent father, Mr Gujic, have three children: X born 2017; Y born 2020, and Z born 2021 (“the children”).
The children were born in Country D and until very recent events, lived there. It is agreed the children’s habitual residence is Country D. They are Australian Citizens by descent from the father. It is agreed that the younger two of the three children had never been to Australia before recent events.
It is common ground that the children have not seen their mother since the father’s international unilateral relocation with the children from Country D in late 2023. Up until that time, it seems common ground that the parties lived traditional lives in Country D – the mother stayed at home and the father worked, including regular trips away leaving the children with the mother and the assistance of nannies.
It is also common ground that upon the father’s departure with the children from Country D in late 2023, he twice permitted the children to talk to their mother, but only after she arrived in Australia for this hearing.
The applicant mother was born in 1987 in Country E and is a Country E citizen. She has lived in Country D since at least 2010 pursuant to various Visa classes, including student Visas and a Visa through the father via his employment. Since late 2023 when the father cancelled her Visa, she has lived in Country D on a Special Pass Visa and most recently transferred to a student Visa.
The respondent father was born in 1980 and is an Australian Citizen. He says he has only lived in Country D since 2019, but it is common ground the parties commenced cohabitation in Country D in or about late 2016. The parties were married in Country D in 2018. They separated in that country too when the father flew the children out of the country without the mother’s knowledge or consent in late 2023.
Prior to the father’s departure from Country D [with the children], it is agreed the mother wanted to visit Country E with the children in late 2023. It also seems uncontroversial that the mother has family living there and had visited Country E with the children in the past and returned to Country D.
What flows from that agreed fact about a trip to Country E is that the father thought the mother would not come back. The mother denied this was her intention.
On a morning in late 2023, the mother says when she woke, the father and children were gone. It is agreed that the father had engaged security guards to take her to the airport with limited personal belongings (as defined in a letter by the father to her). The father wrote to his hired security guards that they were to “lodge a report with immigration department of [Country D]” if the mother did not board the one-way flight to Country E (Annexure F to the mother’s affidavit filed 12 January 2024, p.46). The clear inference from his letter to the security firm is they were to notify the relevant authorities so she could be deported from Country D if she did not otherwise leave the country as the father had unilaterally arranged.
The father deposed at his paragraph 194, “I did provide the employed agency [the security firm] with [Ms Arterbury's] passport, visa, ticket to [Country E], two letters and cash with instructions to give the envelope to [Ms Arterbury]”. One of the two letters was the father telling the mother he had cancelled “all visas and flights having been arranged ... the children and I are heading to a safe place, not a war zone”. He did not tell the mother where he was actually going with the children. The other letter was also from the father but as a director of a corporate entity requiring the mother to immediately vacate the former matrimonial home in Country D. The father accepts he took her phone, saying it was a company phone and took her bank card (Father’s affidavit filed 8 February 2024, paragraphs 219 and 220(b)). The father was the only income earner in the relationship.
The mother (using the nanny’s phone), or a friend, called the police and they attended the home. At the request of the police, the mother went to the station to make a report.
The mother deposes that she then embarked on a process of trying to talk to the children and ascertain their whereabouts. The mother exhibits pages of calls and texts to the father’s mobile. On the face of the documents, the texts are almost entirely unanswered (if not totally), and her calls cancelled. The father agreed he had not responded to her communications. She also tried to talk to the paternal grandmother but without any luck.
The mother engaged with the following entities in her search for the children: the Australian High Commission; Country D Police department; the Country F Government; and, the Australian Federal Police. The mother also spoke to the father’s business partner trying to ascertain the children’s whereabouts.
In late 2023 the father commenced divorce proceedings in Country D. On the same day the mother sent an email to the Australian High Commission in City G seeking assistance in locating the father and children. A few days later, the mother received an email from the Australian High Commission, who stated that they would provide assistance.
The mother deposed that she “applied for custody in [Country D]” (Mother’s affidavit filed 12 January 2024, paragraph 77). Her application, dated late 2023, is in evidence before me.
In December 2023 the mother was able to confirm with an officer of the Country D Police department that the children and the father had left on a flight to Australia in late 2023. A short time later, the mother requested an appointment with the Australian High Commission in City G, which was then scheduled for December 2023. A short time later, the mother contacted the Australian Federal Police in relation to the return of the children and requesting the children be placed on the Airport Watchlist. The mother deposed she was able to engage Australian solicitors two days prior to the Christmas closure. In early 2024, the mother met with the father’s business partner who told her the father had said the children were now going to school in Australia. That would seem odd because school does not commence in Australia until the end of January.
These proceedings
On 12 January 2024 the mother filed an urgent Initiating Application in the Federal Circuit and Family Court of Australia (Division 2). The matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) on the same day. The mother sought, in essence, a return of the children to Country D on a summary basis.
I am satisfied the mother moved as promptly as she could to initiate proceedings in this court. First, she had to ascertain the children’s whereabouts. Second, she had to engage lawyers in Australia. Third, she had to contend with the Christmas break. Fourth, once her Initiating Application was filed, she had no control over the court’s listings of the matter and the need to allow the father an opportunity to put on response material.
The first return of the matter was quickly listed before a Senior Judicial Registrar on 18 January 2024 and orders were made placing the children on the Airport Watch List. Further orders were made for substituted service on the father and the matter was set down for hearing on 16 February 2024, being Friday just gone.
The father filed a Response on 8 February 2024. He proposes the children live with him, have supervised time with the mother and some communication orders. He sought a transfer of the matter to Brisbane.
On 12 February 2024 I issued orders for the parties to update their Case Outlines to consider whether s 111CD of the Family Law Act 1975 (Cth) (“the Act”) applied and whether or not the doctrine of forum non conveniens arose for consideration. At the hearing, it was agreed that doctrine had no application to this matter and the wife’s application for summary orders fell within a best interests framework; see s 67ZC of the Act; ZP v PS (1994) 181 CLR 639 (“ZP v PS”) and Kwon & Lee (2006) FLC 93-287 (“Kwon & Lee”).
I also ordered an additional affidavit be filed by each party addressing the parties’ and children’s citizenship status/es and where they may live and under what Visa arrangements.
MATERIAL
The mother relied upon the material set out in her Updated Case Outline, including a copy of the parenting application filed in the Country D Court, which became Exhibit 1. Exhibit 2 is a copy of the mother’s approval as a foreign student to study in Country D, dated early 2024.
The father relied upon the documents set out in his Updated Case Outline.
JURISDICTION
The parties are agreed I have jurisdiction to hear the matter pursuant to s 69E of the Act. I accept that to be so. The father and children were present in Australia on the relevant day, and, the father and children are Australian Citizens.
On the face of it, the Court has jurisdiction to hear the parenting proceedings.
However, that exercise of jurisdiction is conditioned, qualified or regulated by s 111CD of the Act. That is clear from s 111B which mandates Division 4 has effect “despite the rest of the Act”.
The parties are agreed s 111CD(1)(f) of the Act applies, including that the children are habitually resident in a non-Convention county, being Country D in this case. That is plain on the facts of the case. It is also agreed that Country D is a non-Convention country for the purposes of s 111CD(1)(f) and a non-Hague Convention country.
It is not in dispute that the father is seeking a Commonwealth personal protection measure, being parenting orders dealing with parental responsibility and where and with whom the children will live.
COUNTRY D LAW
At the hearing, the father placed some weight on s 91 of the relevant Country D Act, which says:
91. When a child is deemed to be legitimate under section 75, the mother shall, in the absence of any agreement or order of court to the contrary, be entitled to custody of the child.
It was submitted that section, with the emphasis on a mother’s custodial entitlements, “is a worry”. However, the submission overlooks that the provision is subject to a court order to the contrary.
The Act also provides:
3....
(3) This Act shall not apply to a Muslim or to any person who is married under Islamic law and no marriage of one of the parties which professes the religion of Islam shall be solemnized or registered under this Act; but nothing herein shall be construed to prevent a court before which a petition for divorce has been made under section 51 from granting a decree of divorce on the petition of one party to a marriage where the other party has converted to Islam, and such decree shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam.
(Emphasis added)
The father maintained the parties’ marriage was an Islamic one. The parties are listed as Islamic for their religion on the children’s birth certificates. Thus, it may be that the Act (and the provision about which the father complained) has no application to the parties. I form no concluded view about that because it is unnecessary to do so.
The father, through his counsel, then went on to question the court in which the mother filed her parenting proceedings, being the High Court in City G, Country D. Much emphasis was placed on the fact that the mother applied to “the […] Court for the territories” as “there is a commonality, these countries adopt Shariah law” and again referred to s 91 of the Act.
The father’s counsel seemed to be inferring Shariah law was problematic, but no flesh was put on the bones of the thinly veiled attack on Shariah law. When pressed for evidence to support the unspecified and inferred challenge to this comparative legal system, the father’s counsel conceded “I can’t say it is bad”.
I will not embark upon a value judgment of another nation’s laws, and judicial system.
Rather, what I conclude is that the mother has brought parenting proceedings in the country in which the parties chose to live, marry and have children.
The father also sought to rely upon some selective commentary by Justice Kent about Shariah law in Randle & Randle [2011] FamCA 830 (“Randle”). However, that case concerned Country H and there is no evidence before me that the application of Shariah law in Country H is the same as the application of Shariah law in Country D.
More importantly, Randle follows the orthodox approach, at least since ZP v PS, that the proper test for matters such as these is “the “best interests” test, as held in ZP v PS, rather than the Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 “clearly inappropriate forum” test associated with the common law principles of forum non conveniens” at [43].
A SUMMARY ASSESSMENT, OR NOT
The applicant mother seeks an order on a summary basis that it is in the children’s best interests that they swiftly return to Country D. The father resists this and proposes the matter be considered in Australia as a “normal” or “usual” parenting matter, where the children’s best interests can be examined in a fulsome, not summary, way.
The children’s best interests are my paramount consideration, whether making a summary order for the children’s immediate departure from Australia (see s 67ZC of the Act; ZP v PS), or an interim parenting order if a return order is not summarily made.
Counsel for the mother referred to ZP v PS, in which their Honours Brennan and Dawson JJ adopted the following reasons of Buckley L.J. in In re L (Minors) [1974] 1 WLR 250 at 264-265:
To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts…which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country, may well be regarded as being in the best interests of the child.
In Kwon & Lee the Full Court said at [83(vi)]:
in some circumstances, such as an abduction from a non-Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the court will have regard to the child’s best interests as its paramount consideration
The approach to be taken to the mother’s application for summary orders was also well described by the Full Court in Killam & Loeng (2015) FLC 93-642 (“Killam”) per Finn J at [56] (in dissent on the disposition of the appeal but at one with the plurality as to principle):
56.…in a case involving a dispute as to the jurisdiction in which the future arrangements for a child should be litigated, the doctrine of forum non conveniens has no application, and that the issue is to be determined according to the test of what is in the best interests of the child…
The Killam plurality (May and Ainslie-Wallace JJ) said of ZP at [104]-[105]:
104.Their Honours at page 648 quoted with approval the statement by Neill LJ in In re F. (Abduction: Custody Rights) [1991] Fam 25 at 32 where he said:
The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.
105.Their Honours continued, saying at 648, that when the question arises whether the Family Court or a foreign court should determine the issues of custody of children:
…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 the Court should embark on determining the issue of custody itself.
The father relied upon Karim & Khalid (2007) FLC 93-348 (“Karim & Khalid”) submitting:
…their Honours Finn, Coleman & May quoted the trial judge (Watts J) who pointed out that a major consideration in considering a competing jurisdiction is whether or not that jurisdiction will take notice of any orders made by the then Family Court of Australia. If a child or children are ordered to be returned to that jurisdiction, will any orders made by an Australian court in relation to their return be given any credence whatsoever?
(Father’s Updated Case Outline filed 15 February 2024, p.4)
Respectfully, what the primary judge said about “whether or not orders made would be recognised by the other jurisdiction” came within his discussion of the relevant considerations if the clearly inappropriate forum test applied.
Read as a whole, the Karim & Khalid appellate judgment stands for the well-settled proposition that the child’s best interests test applies to applications for the return of a child to a non‑Convention country.
Is a summary order for the children’s return to Country D in their best interests?
The mother’s case
The mother’s case is as follows:
·The children were born in Country D;
·The children’s school, day care and friends are in Country D;
·Their home is Country D;
·The father will not facilitate a relationship with the children here - his unilateral relocation and lack of communications between the children and mother until the eve of hearing contraindicate he would do so;
·Whilst I would be unable to make findings about disputed allegations of family violence between the mother and father, I could comfortably find the father committed acts of coercion and control against the mother by the terms of the three letters he wrote (one to a security agency and two to the mother) and the engagement of “hired thugs” to exclude her from the matrimonial home, the children and country of her choice for many years, Country D. The following extracts are highlighted:
·In a letter of instructions to a security firm dated late 2023:
…This authorization is granted for the purpose of protecting my property and person, as well as facilitating the security and well-being of [Ms Arterbury] during her immigration process and travel arrangements.
...
... in event of female [agreed to be the mother] seeking to barricade self in room. Permission granted to gain entry by force carefully if individual is behind door to avoid injury and safeguard the individual from self-harm including justified and reasonable restraint In event of attempt self-harm or damage to property. Safety is priority.
…
…Should [Ms Arterbury] fail to exit the country, to lodge report with immigration department of [Country D] if she refuses to take the flight to [Country E].
(Mother’s affidavit filed 12 January 2024, p.46)
·In a letter written by the father dated late 2023 handed to the mother by the security guards:
...
…all visas have been cancelled, and flights have been arranged. I want to emphasize that the children and I are heading to a safe place, not a war zone.
…
(Mother’s affidavit filed 12 January 2024, p.54)
·In a letter written by the father as director of a corporate entity, dated late 2023, also handed to the mother by the security guards:
...
All chattels of the company and personal effects of the Director [the father] are to remain the property of [J Company]. Therefore, we kindly request you to vacate the premises, taking only your personal effects.
For clarification, your personal effects are defined as clothing, items owned by you prior to 2016, cosmetics, and photos in which you are subject. We have allocated resources to assist and observe your activities, ensuring the safeguarding of the premises and chattels, and to aid your transition to the airport for your departure, as per the provided details.
Please be informed that all visas have been cancelled, and arrangements have been made for a special pass to facilitate your exit from [Country D] on the designated flight today. Following your departure, the residence will be securely locked.
...
(Mother’s affidavit filed 12 January 2024, p.55)
·In a text to the mother in early 2024:
…Leave [K Apartments] immediately or I will have to file trespass...you continue to mistake my tolerance for weakness…
Communication shall be viable with parameters and strict rules including clarity as to what is not acceptable for you to say to the children which will invariably cause distress and anxiety for the children…
(Mother’s affidavit filed 12 January 2024, p.42)
·Regard ought be had to matters of public policy per Deane & Gaudron JJ in ZP v PS:
that in determining what is in the interests of the welfare of the particular child, a court is entitled to take account of considerations of public policy reflecting and protecting the interests of all children. Among those considerations of public policy is the prima facie importance, in the interests of all children, of discouraging the taking of a child from his or her homeland and familial environment, in breach of the law of that homeland, for the purpose of obtaining standing or some forensic advantage in a dispute about custody…
·The mother has no family or support here and the idea she could live in Australia is not a reasonable submission;
·Her first time in Australia is for this hearing (however, the father says the mother went with him and the oldest child to City L in early 2019 but immediately showed distain for, at least, City L);
·She does not have a Visa to live in Australia;
·There is no offer of financial support from the father for the mother to stay in Australia;
·The father's criticisms of the mother that she was unemployed highlights the reality that she was the primary carer of the children;
·There is more to being a parent than, as the father says (albeit in his Outline), “being in employment, being fit and earning a high salary”;
·The father's case outline (again not evidence) recognises the children’s separation from their mother would likely cause them significant distress and it is “unfathomable” that he has done nothing about that;
·In Country D, the father was not an involved parent, working away on his own case three to five days at a time and a week to 10 days each month;
·In Australia he has “fobbed off” parenting to an unnamed au pair, his unnamed business partner's unnamed daughter and the paternal grandmother who has had a limited relationship with the children. None of these people have affirmed/sworn affidavits meaning the court knows very little about them or their suitability;
·The evidence leading to the father’s conclusion the mother was to “abscond” with the children to Country E “is scant”;
·The mother has enrolled in studies in Country D and wishes to keep living there;
·The father's allegations of family violence are vague;
·His unilateral relocation was an act of vengeance;
·If the children remain in Australia, they will not have a meaningful relationship with the mother and that would have to cause the children distress;
·Shariah law is not a monolith where whatever might be the case in Country H (a reference to the father’s reliance on Randle) applies with equal force to Country D;
·The mother has been the children’s primary carer;
·No anti-suit injunction has been sought against her by the father;
·If the Court, either in Australia or Country D, determines that the children should relocate to Australia, that can be facilitated at a later date;
·If they are not returned to Country D, their relationships, places at school and familiarity will wane;
·The children are “wholly unfamiliar” with Australia; and
·The mother has commenced proceedings in Country D and the Country D Court can, and should determine the dispute.
The father’s case
The father started his oral submissions by highlighting he had allowed the children to have two calls with the mother since she arrived in Australia. But it is common ground the children have had no other communication or contact with the mother since they left Country D in late 2023.
The father’s case is as follows:
·The children are only two, three and six so they really would not know the Country D culture or pick up differences now in Australia (this is at odds with the father's affidavit where he was at pains to labour the differences in, for example, air pollution and the visibility, or not, of stars in the sky);
·All the children would know is that they were “just living with mum and dad” (which means they must know they are now “just” living with their father);
·The father never intended to live in Country D permanently and the country is “not good enough” (yet this is where the parties cohabited, married, lived and had three children);
·Two of the children have never been to Australia (I am not sure how this helps the father);
·When together the parties turned over nannies, so a new nanny now is no different;
·It was the mother’s fault the nannies left;
·The father does not want the mother to know the identity of the nanny (which means the Court cannot assess their appropriateness either);
·The father has moved to a place of safety;
·When asked a question, the father’s counsel accepted there was no explanation why the father did not take protective court measures in Country D;
·The “security detail” he hired were not “hired thugs”;
·With both parties alleging family violence, it is “impossible to know where the danger lies”;
·The father is aware of the distress caused to the children by his unilateral relocation;
·The particulars, or past facts, said to support a predictive conclusion of unacceptable risk asserted by the father against the mother are found at the father’s paragraphs 59, 60 and 130-147;
·The father and children are Australian citizens, and this is a competent court to inquire into and decide the children’s best interests;
·The mother does not give evidence where she will live or work in Country D;
·The matter should be “stood over for an urgent hearing”, but the father did not actually apply for an expedited hearing. Nevertheless, the submission was made, but also with the acceptance that an expediated final trial is unlikely. (Indeed, I advised the parties I would not be able to list the matter for trial until 2025 and the parties did not ask me to make enquiries of other Judges);
·The father did what he did because he had “a very real fear” the mother would go to Country E;
·The children are currently residing in Australia;
·They are Australian citizens and they do not have citizenship in any other country;
·Country D is a Muslim country which has adopted Shariah law and is not a signatory to the Hague Convention;
·The mother is not a practising Muslim; and
·The mother’s status to remain living in Country D is unclear.
Discussion – best interests
Meaningful relationship: The father proposes this Court curtail the children’s relationship with the mother to supervised time and some communications. The mother proposes the Country D Court determine the parenting and in the meantime, seeks an order that she have “temporary custody of the children ... until there is another Other [order] issued”. In that context, she also proposes the father’s time be supervised (Exhibit 1).
Whilst each party has their Court position set out in documents, it is clear that until very recently, the children had the benefit of both parents in their lives and on a regular and physical basis.
I do not accept the father, the respondent, would facilitate the children’s relationship with the mother if they remain in Australia. His actions in late 2023 and his failure to facilitate the children talking to or seeing their mother between the end of 2023 until two calls in February 2024 hearing belies that intention. Conversely, the mother initiated proceedings in the High Court in Country D in City G for it to make parenting orders.
Protection from harm: The father says the mother poses an unacceptable risk of harm to the children, so much so that he sought orders that the children’s time with the mother be supervised.
In understanding the concept of unacceptable risk, s 140 of the Evidence Act1995 (Cth) applies to the proof of past facts but is not the measure to assess unacceptable risk going forward. Instead, consideration of unacceptable risk is a predictive exercise not requiring proof of any possible harm as a probability (Isles& Nelissen (2022) FLC 94-092 (“Isles”)). Or as neatly said in Isles at [47] and [53]:
47....The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
…
53....while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
Turning to the next question of unacceptable risk, at [51] the Isles Full Court adopted what Austin J said in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”) at [139] including this useful elucidation of the concept (albeit about sexual abuse allegations, but with no reason why it would not apply to any other kinds of abuse):
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
I will begin the analysis by considering what findings I can make, or not, about past acts of alleged abuse. At paragraph 59 the father deposed, “[Ms Arterbury’s] threats and accusations towards me escalated for a number of years and particularly in the last few months of the relationship”. He then gave examples at paragraph 60, and adopting his lettering:
(a)The mother demanded a divorce when he disagreed with her, was irrational, illogical, an absolutist, controlling and violent when held to account;
(b)An allegation of mid-2022 deposed to at paragraph 130 of his affidavit. At paragraph 60(b) he says she threatened to file false police reports;
(c)In November 2022, a new nanny arrived and the mother “kicked her out” and referred to the nanny as the father’s new girlfriend in messages to him;
(d)“[In] May 2023 [Ms Arterbury] threatened that she can call the police any time she wants to have me arrested. ‘Suffer [Mr Gujic] Suffer from now onn ...’”;
(e)In May 2023, the mother blocked the father on WhatsApp and her phone. The father and a child went go-carting and the mother threatened to call the police about kidnapping. “Meanwhile [Ms Arterbury] was out claiming to be at the gym and when I asked her where she was, she told me it was none of my business”;
(f)In October 2023 the father was in Country F and deposed the mother was restricting the children’s communications with him and threatened to disappear with the children. “She demanded to take children to [Country E] at the end of November early December 2023 as her friend was going also and it was still safe for them to go”;
(g)In November 2023, the mother said something about a surprise “next year” and again “demanded she be allowed to take the children to [Country E] despite my urgings not to do so ...”;
(h)The above “surprise” statement was made “virtually immediately after the threat [Ms Arterbury] made to me that she would disappear with the children”;
(i)She was “stockpiling” cash in September and October. The father annexed bank statements said to be in support;
(j)She spent a large amount in local currency in November 2023, when she would usually spend just over half of that;
(k)She sought a Visa to go to Country E with the children; and
(l)“[Ms Arterbury] planned to take the children to [Country E] [at the beginning of] December 2023 with her friend […] and her husband who were travelling to [Country E] on the same dates, while I was scheduled to be in [Country F] until [a few days later]”.
In his following paragraphs, the father makes unparticularised allegations, without factual bases about “continued threats”. I do not put any weight on such vague assertions.
In the father’s list summarised above, I will consider the mid-2022 allegations separately. In the meantime, if I take the father’s allegations at his paragraph 60 at their highest, by and large, what the father alleges is poor domestic behaviour on the part of the mother, but not family violence and abuse; for example messaging the father about the nanny. It also comes as little surprise that the Country E mother wants to travel to Country E, where she has family, and take the children. I accept the mother’s submission that the annexed bank statements do not make out the mother stockpiling cash “and banking it into her bank account” as the father contends. To the contrary, it appears to be rather routine purchases from places such as various retailers and the like.
Indeed, there is no reliable evidence before me that the mother had any plans to not return from Country E. The father’s conjecturer and speculation is not evidence.
It is also not surprising that the mother sought the father’s permission, or “demanded to be allowed” to go to Country E, and, the father had reservations about that. Of note though is in other correspondence to the mother, the father called Country E a “war zone” – and that is precisely where he proposed the mother be sent on a one-way ticket to Country E, with the assistance of his hired security guards to get her to the airport.
What is also plain from the father’s list above is that the mother included the father in her requests to take the children to Country E – not a courtesy extended by the father to the mother when he left Country D with the children without notice to her, much less her consent.
It is also noteworthy, that for all of the mother’s apparent threats to “disappear” with the children, including when the father was working in Country F, she did not take up the opportunity. She and the children were in Country D when he returned there from Country F.
I am told the mother denies the allegations, which might be thought to make them disputed facts. But that does not prevent me from forming a view about the father’s allegations, which taken at their highest, do not meet the test of family violence in the first place.
There is nothing in the father’s list at his paragraph 60 (with (b) to be considered separately) that supports a finding of family violence and abuse. There are aspects of poor domestic behaviour, intemperate words, volatile behaviour and different views about Country E. That said, I will not ignore what the father alleges at his paragraph 60, because at the very least, they go to an assessment of unacceptable risk (as the father contends) and the wider parenting dynamic (Cimorelli & Wenlack [2020] FamCAFC 58 (“Cimorelli & Wenlack”) at [80]).
I now turn to the father’s other particulars of alleged abuse at paragraphs 130-147.
In mid-2022, the father describes an argument between he and the mother, where he says the mother accused him of bugging her car “and I just yelled ‘stop it I cannot take your shit’”. The father then alleges the mother, “punched me repeatedly in my back and I blocked her, she continued the attack and by turning around and blocking her punch I unsettled her balance enough for me to turn and get inside the house and go upstairs to my office”. The father does not say the children were present. The father attaches photos of himself with marks on his back, but there is no time stamp on them (save for “Today”) to verify they were taken in mid‑2022. There are also many ways the father could have been bruised. The father said he then videoed the maternal grandmother scratching the mother; all I have in evidence is a screenshot of two people. It does not advance the matter. The mother and father both went to the police. The father’s report to the police is annexed to the father’s affidavit. The mother attaches her report to her affidavit.
In late 2022 the father alleges the mother attacked him and broke the glasses he was wearing. He said put his arm up to “resist further attack and sought to shut the sliding door”. He says the mother fell over. He attaches a photo but it does not have any time stamp on it to assist in locating it to a point in time.
In late 2022, the father deposed, in summary, to an argument between he and the mother and in front of at least one child. On the father’s case, both spoke poorly to the other in front of the child.
The mother has not had the opportunity to respond to the three allegations dated mid-2022, and two dates in late 2022 (although I am told she denies them) and the allegations remain untested. These allegations have a different quality to them than those I have previously referred at paragraph 60. I cannot make findings one way or the other, but that does not mean the allegations are “ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests (Cimorelli & Wenlack at [80] citing Salah & Salah (2016) FLC 93–713 at [35] –[45]; Eaby & Speelman (2015) FLC 93–654 at [18]–[19]).
At paragraph 143 the father said:
143.[In mid] 2023, I witnessed [Ms Arterbury] punching [X] on the video monitor for our security cameras. I ran downstairs to intervene and positioned myself between [X] and [Ms Arterbury] and she physically attacked me instead. There is video of this incident which I can produce to the court.
At the hearing, I stood down so the mother’s counsel could watch the video when the USB was produced at the Bar Table. The mother’s counsel said, without demur, that the video started abruptly, and the antecedents were not displayed. He conceded that the video showed the mother smacking a child and that the mother used the side of her hand to hit, or perhaps slap the father on his upper arm.
The father’s counsel accepted that concession.
The mother, as a parent, is entitled to smack her child. However, I accept the mother hitting the father is an act of violence.
The father then makes general commentary without any factual bases at his paragraphs 144 to 146, (including “when she was violent to the children”) which do not assist him evidencing his case about the mother. At his paragraph 152, the father says, “[o]n more than one occasion she has punched [X]” but he does not tell me when. Earlier in his paragraph 143 the father said he saw the mother punching the child, but after a video was watched by counsel, the father’s counsel accepted the mother’s concession that the mother had smacked him. I am thus circumspect to accept what the father says about punching and without any explanation when. The father also makes much of the mother’s mental health (at paragraphs 150-158) but no submissions were made about that in the context of unacceptable risk.
Three things arise out of all of the father’s allegations of abuse (“the three things”). First, whilst I do not consider the father’s list at his paragraph 60 to amount to family violence, that does not mean I ignore them. Second, whilst I cannot, on this summary (or interim) basis, make findings one way or the other with respect to the allegations of abuse dated mid-2022, and two dates in late 2022, that is not the end of the unacceptable risk inquiry. Third, on the back of the mother’s concession, I have found she committed an act of violence against the father in mid-2023.
At [50] in Isles, the Full Court cited with approval what Austin J said in Fitzwater, including at [140]:
It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) [2009] FamCAFC 230; (2009) FLC 93-422 at [56]- [61]; Johnson and Page at [68], [71], [76], [77]).
Both parties describe, although on different allegations, a tumultuous and volatile relationship. It is clear on both parties’ cases that the mother’s requests and/or threats to go to Country E were a lightning rod for the parents. It is also clear that when together, although again on different allegations, the parties’ relationship was high conflict. The mother also struck the father in mid-2023. It is clear the parties often had “heated arguments between us in front of the children” (Father’s affidavit filed 8 February 2024, paragraph 212); it matters little for the children’s reality who started the arguments or who goaded whom on.
The father says the mother is an unacceptable risk of harm to the children. He deposed to the mother being “violent to the children” (paragraph 145) but in a vague, unspecified way. At his paragraph 143 he deposed to seeing the mother “punching” a child, but accepted the mother’s concession she had smacked him, which she is entitled to do as a parent. The main thrust of his particularised evidence about violence was between he and the mother.
Standing back and considering the father’s evidence including “the three things” set out above at [78], then looking to the future predicative exercise of possible harm, I do not consider that the mother poses a possible risk of harm to the children that is unacceptable. The children would have been caught in the middle of, or aware of, the parental tensions and disputes when their parents were together. But the parties are now separated.
I now turn to other best interest considerations.
Views: The children are too young to express wishes. I do not put any weight on what a child is said to have said to a teacher and then the teacher to the mother.
Nature of relationships: As for the nature of the children’s relationships, the children’s reality is that from their births to late 2023, they lived with the parents and in Country D. It is therefore hard to conclude that the children have anything other than close connections with both parents.
The father does not appear to claim that he was the children’s primary carer when in Country D. At paragraphs 76-85 of his affidavit, he deposed to hiring nannies to assist the mother and the travel he undertook. At his paragraph 176 he said he “often worked late and got up early”. The father is also relying on other people to care for the children in Australia, only one of whom (the paternal grandmother) the children would have any familiarity with - but even that relationship is one where the children “have spent limited time” with her in the past (Father’s Updated Case Outline filed 15 February 2024, p.2).
Participation in decision making, time and communications: Relocating so it is harder for the children to see the other parent would be considered a major long-term decision; s 4(1) of the Act. The father’s actions excluded the mother from participating in such decision making and has prevented the children seeing the mother or communicating with her, save for two very recent phone calls. I cannot fathom how the children are internalising their new environment, the absence of their mother and insertion of unnamed carers. The father continues to work away from the home, and will still travel overseas for work, but only for “high impact meetings only in [Country F]” – I have no idea what that means in terms of frequency out of the country. Conversely, the mother asked the father if she and the children could go to [Country E], thereby including him in that process.
Maintaining the children: the father was the sole breadwinner. In the meantime, the mother has obviously found the means to fly to Australia and stay here until, I am told, early 2024.
Change in circumstances: The father’s unilateral relocation of the children without notice to and the consent of the mother is a significant change for them. It is unduly simplistic for the father to paint a picture that the children are doing fine. Instead, the father (albeit in his Outline) recognised the likely significant distress his actions would cause the children. He has done nothing about that, but it is suggested in his Outline (again not evidence) that he is “open to professional intervention when & if necessary”, whatever that might mean.
Conversely, Country D is not a foreign place to the father, the mother, and most importantly the children. The mother has parenting proceedings on foot in Country D and the father made an application for divorce there.
I am well satisfied that being abruptly uprooted from all they know, including the mother, their schools / day cares, extra-curricular activities, the children’s friends (in particular for the oldest child), their environment, and the culture experiences in which they have lived, must be distressing for the children. I also accept the mother’s submission that remaining in Australia “represents the most drastic change in the children’s circumstances”.
Practical difficulties: The idea of the mother living in Australia whilst the proceedings take place is neither reasonable nor practicable. The mother may have accompanied the father to City L in March 2019 to consider a job offer for the father, but on his case, very quickly rejected this country. His evidence was the mother did not warm to City L on arrival and said she was taking the eldest child back to City G the next day, with or without the father.
The father does not offer any financial support to the mother to stay, nor is it clear to me that the mother could obtain a Visa to remain here or the time frame for such an application. I have no idea whether she would be allowed to stay in Australia pending the application process. Instead, the mother has secured a Visa in Country D and is commencing studies at a University in City G (Exhibit 2).
The father has been able to secure Visa/s to live in Country D at least since 2019. He has been able to organise dependency Visas for the maternal grandmother. He chose to end his employment Visa in late 2023, and then stayed the next few days in Country D on a special pass. The father gives no evidence that he would be precluded from obtaining whatever Visa he would need to resume living in Country D. The father, through a corporate entity, also seems to have possession or control of the home in which the parties resided in Country D. This is the home he, as director, ordered the mother to leave.
Capacity to parent and responsibilities of parenthood: These factors were not positively demonstrated by the father’s actions in late 2023 and the consequences for the children thereafter. Further, the father - with his professed “high salary” and ability with logistics as demonstrated by the events - gives no reason why his three allegations of abuse in 2022 and the mother’s assault in mid-2023 lead to him uproot the children from all they knew in late 2023. Even if I accepted the three 2022 allegations (having accepted the 2023 allegation), I consider his response to be completely disproportionate and lacking in child focus. Whilst the father was able to file for a divorce in Country D, he gives no evidence why he did not seek protective remedies in a court there. Such protective measures would have allowed the children to remain in Country D with all that is familiar to them. But he did not.
Rather, it is clear to me that when the father thought the mother may go to Country E and not come back, he did precisely what he feared the mother might - unilaterally relocate the children. She however included him in her hopes and requests to go to Country E. The father did not return the favour. Instead, the father considered it would be such a bad and traumatising thing for the mother to take the children away, that he did the same himself, but without any notice to the mother or including of her in his plans, as the mother had done. None of this speaks well to his capacity to parent or responsibilities of parenthood.
In the meantime, the mother has not resorted to self-help, but approached authorities to help her locate the children and made applications to both this court and in Country D. They were responsible and child focused things to do.
Lifestyle, background: The children have a rich cultural tapestry and one which until recently saw them immersed in their day-to-day Country D lifestyle, with their Australian father and Country E mother. Their connections to Australia are limited to what the father has unilaterally created.
Family violence: I have already found the mother committed an act of violence against the father in mid-2023. I repeat what I said about the father’s three 2022 allegations and other generalised allegations here.
I find the father’s letters to the mother and letter to the security detail are appalling acts of coercion and control - the clear inference from the instruction “to lodge report with immigration department of [Country D] if she refuses to take the flight to [Country E]” to the security people was to have her deported. He sought to remove her from the Country D matrimonial home, with “clothing, items owned by you prior to 2016, cosmetics, and photos in which you are subject”. He sent security people to the home with the clear task of getting her to the airport and on a one-way flight to Country E (which he called a war zone in other correspondence). He also removed the children from the mother’s care, and the lives they knew in Country D. In short, he took steps to prevent the mother and children “keeping connections with his or her family, friends or culture” (s 4AB (2)(i)) and used coercive and controlling means (s 4AB(1)) to do so.
On the strength of his actions and deeds just described, I find the father committed acts of violence and abuse not only against the mother, but also against the children caused by his abrupt severance of the children from their mother and the lives they knew.
I acknowledge the mother makes other allegations of family violence against the father, but they (like the father’s three allegations in 2022) remain disputes of fact.
Further proceedings: Of course, it would be preferable to make an order least likely to lead to further proceedings but that is not a reality here. The father wishes to pursue his Australian parenting proceedings and the mother her Country D parenting proceedings.
Other: By reference to the parties’ second affidavits, I am satisfied both parties have passport or Visa options available to them to allow the children to live in either Australia or Country D.
Disposition
I am well persuaded that it is in the children’s best interests to return from whence they came. I am equally satisfied that a speedy return will promote their welfare. The father’s unilateral relocation of the children without notice to and consent of the mother demonstrates a significant disregard for the impact of his actions on the children. His actions were completely disproportionate to the unacceptable risks he asserts and his fears (on scant evidence) about the mother moving to Country E and not returning.
I accept the mother’s submission that the threat of going elsewhere is a red herring. For example, the father feared the mother would leave with the children when he was working in Country F in late 2023. But she did not. I also accept the mother’s submission that whether the children were in Country D, or, say Country E, then the father would have been dealing with a non-convention country, either way. That said there is no suggestion before me that the mother has plans to do anything other than return to Country D. She has secured a student Visa and enrolled in a program at a University in City G.
I also accept the mother’s submission that the idea of her moving to Australia is not viable. She has no connections or support here and her in/ability to secure a Visa and timeframe for such an application are unknown. Conversely, the father has devoted finances and energy to making a life in Country D and secured Visas for himself, the mother and maternal grandmother, even if he now says it was never his plan to live there permanently.
The children’s abrupt dislocation from all that is familiar, and the likely negative consequences that will have upon them, powerfully warrants their speedy return to Country D. I do not accept the father’s criticism of Country D, its environment and laws, as all of those matters would have been apparent to the father when he commenced cohabitation with the mother in Country D, married there and had three children there. Or as the father said in his affidavit, when travelling frequently in 2016 and 2017, “I found [Country D] to be a convenient hub and transit point and [Ms Arterbury] was there, so I was content to continue” (Father’s affidavit filed 8 February 2024, paragraph 27). He later added, “I invested a lot of time and effort into making our home in [Country D] as comfortable as possible. I made it a place to foster learning and to be as fun as possible” (Father’s affidavit filed 8 February 2024, paragraph 97).
I do not accept the father would foster the children’s relationship with the mother in Australia; his actions in late 2023 and actions of not even allowing phone communications between the children and their mother until very recently demonstrate this to be so.
There is no reliable or cogent evidence before me that the High Court in Country D in City G will not properly consider and determine the children’s parenting arrangements (ZP v PS at [7] per Brennan and Dawson JJ). Ultimately, the father did not pursue the submission that Country D Shariah law was “bad”. I will not impugn another sovereign nation’s legal system.
The children attended educational facilities in Country D and commenced day care at 18 months of age. They have been removed from their familiar peers and environment without any timely transitional arrangements. In the circumstances, I consider it more probable than not that they (especially the eldest) did not even have an opportunity to say goodbye to friends and teachers.
City G and Country D is the children’s “native land”, in the sense described by Buckley LJ in In re L (minors) extracted above. It is their home. Conversely the children’s experiential connection to Australia is limited to the father’s recent creation. In reality, Australia is a foreign land to them. The younger two children had never been to Australia prior the father’s unilateral actions, and it is most unlikely the older child would have any concrete memories of being in City L, Australia in early 2019. The eldest child perhaps visited Australia again in mid-2023, but the father tells me very little about that.
I am well satisfied that if the children remain in Australia they will be separated and severed from their homeland and environment, which both parents chose for each of them from their births until the father’s recent, unilateral actions.
Children’s return
I have determined it is in the children’s best interests to leave the Commonwealth of Australia and return to Country D with their mother.
I will make an order the mother be permitted to remove the children from the Commonwealth of Australia and request that the Australian Federal Police remove the children’s names from the Airport Watch List to ensure the mother is able to do so.
To facilitate the children’s return to Country D with the mother, the parties, through their lawyers, are to agree on a date and place for the children to go into the mother’s care, and failing agreement, on Saturday 24 February 2024, at the car park of the Suburb B McDonalds, C Street, Suburb B. That is the same time I will request the Australian Federal Police to remove the children’s names from the Airport Watch List.
If the mother is in Sydney, I acknowledge she will have to fly to Brisbane to collect the children, but that is where the children are; the father lives in or around Region M. It may be the mother can change her flight from Australia to Country D to depart from Brisbane, but otherwise, she can fly from Brisbane back to Sydney with the children and depart from there. There is no magic in the time; it just allows for the rest of the day for travel and/or re-settling with the mother. I have chosen Saturday because it is the weekend. I have also chosen McDonalds because it is a public place which ought limit either party doing or saying anything imprudent to the other, or, the making of further allegations.
I will further order the father deliver all passports and travel documents held by him to the mother to facilitate the children’s travel. This will occur when the children come into the mother’s care.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 22 February 2024
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