Asaad & Noor
[2022] FedCFamC1F 135
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Asaad & Noor [2022] FedCFamC1F 135
File number(s): SYC 8469 of 2021 Judgment of: SCHONELL J Date of judgment: 11 March 2022 Catchwords: FAMILY LAW – CHILDREN – Where the mother sought orders for summary return of her daughter to Country C –Where the mother was the primary carer of the child – Where the mother has not spoken to the child since June 2021 – Where the Court considered the primary and additional considerations set out in s 60CC – Where the father wrongfully removed the child from Country C – Where the father was found to have acted poorly and not in the best interests of the child – Order made for the mother to have sole parental responsibility and for the child to be returned to the mother. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 67ZC, 69ZL
Cases cited: ZP v PS (1994) 181 CLR 639; [1994] HCA 29 Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 11 March 2022 Place: Sydney Solicitor for the Applicant: Legal Aid NSW Sydney Central Family Law Counsel for the Respondent The Respondent did not appear in these proceedings ORDERS
SYC 8469 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ASAAD
Applicant
AND: MR NOOR
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The applicant mother (“the mother”) shall have sole parental responsibility for the child X (“the child”) born 2013.
2.The respondent father (“the father”) shall deliver the child to the mother or her nominee at a time and place as directed by the mother. The mother’s direction can be provided to the father by email and/or text message.
3.Upon delivery of the child to the mother, the mother be permitted to remove the child from the Commonwealth of Australia and return to Country C with the child.
4.For the purposes of s 11 of the Australian Passports Act 2005 (Cth), the child X born 2013, is permitted to have an Australian travel document and the requirement for the father’s consent to the child having an Australian passport is dispensed with.
5.For the purpose of Order 4 above, the mother is authorised to make any decision and take any necessary steps to obtain an Australian travel document for the child.
6.Once issued, the child’s Australian passport is to be held by the mother, or a person authorised by the mother.
7.Until further Order the respondent, the father Mr Noor born 1974, his 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 child X (a female) born 2013 from the Commonwealth of Australia for a period of 12 months
AND IT IS REQUESTED THAT the Australian Federal Police give effect to this Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia, and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.
8.The mother has leave to provide a copy of this Order, and any affidavit filed by her in these proceedings, to the Department of Home Affairs in support of her application for a tourist visa.
AND THE COURT REQUESTED to the extent to which it is possible, that the Department of Home Affairs provide all necessary assistance and documents to the mother to enable her to travel to Australia and remove the child from Australia to Country C, including the issue of any travel documents and visas as are appropriate.
9.The parties have liberty to restore the matter before Justice Schonell on 24 hours’ prior written notice, including in relation to taking any steps necessary to enforce 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 the pseudonym Asaad & Noor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
This is an application by the applicant mother (“the mother”) seeking orders for summary return of her daughter to Country C.
The mother was born in Country C in 1980 and has lived all her life in Country C.
The respondent father (“the father”) was born in 1974 and is an Australian citizen.
The parties were married in Country C in 2013.
The parties’ only child X (“the child”) was born in 2013.
The parties were divorced on 28 April 2015.
The mother relied upon the following documents in the proceedings:
(1)Initiating Application filed 15 November 2021;
(2)Affidavit of mother filed 15 November 2021;
(3)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 15 November 2021;
(4)Genuine Steps Certificate filed 15 November 2021;
(5)Affidavit of mother filed 21 February 2022;
(6)Affidavits of Service of Mr B filed 20 January 2022, 25 January 2022, 31 January 2022, 11 February 2022 and 9 March 2022; and
(7)Case Outline filed 8 March 2022.
Orders made on 31 January 2022 set the matter down for an urgent undefended hearing and directed the father to file and serve documents by 14 February 2022. On 4 March 2022, the matter was allocated a hearing before me on 11 March 2022.
I have read the affidavits of Mr B as to service, as well as the attempted communications by the mother as referenced in her affidavit. I am satisfied that the father has been served with the mother’s documents, and has been given notice of the mother’s application and the listing of the hearing.
The father has filed no evidence and taken no part on the proceedings.
On the hearing, the matter was called and there was no appearance by the father.
As the father has elected to take no part, the sole information I have on which to make a determination is the evidence of the mother.
Given the delay and urgency in the matter I made orders at the conclusion of the hearing. My reasons for the making of those orders are set out below.
BACKGROUND FACTS
The mother in her affidavit identifies that her extended family and that of the father are both from City D in Country C, and that the families have a long-standing connection.
The mother asserts that when she was first introduced to the father, she understood he was divorced from his first wife, with whom he has six children. The father was living in Australia. The mother contends that the party’s families arranged for the parties to speak over the phone and after a number of calls they agreed to marry.
In February 2013, the father came to Country C and in 2013 the parties were married. The mother became pregnant shortly thereafter.
The mother says that when she was about three months pregnant, the father informed her that his first wife was coming to Country C, and that he could not continue to be with her if she told his first wife that they were married.
Upon the father’s first wife arriving in Country C, there was an incident where it would appear his first wife found out about the marriage. The mother contends that she was assaulted by the father. The father said that the mother had to go see his first wife and tell her that they were not married. The mother asserts that she subsequently went to meet the first wife who became upset, which then caused the father to try and put his hands around her neck to choke her. The mother then returned to live with her parents and did not see the father again until his first wife left Country C.
The mother gives evidence that for about the next two years, the father travelled to and from Australia, and that she would live with him during the time he was in Country C and then when he left to return to Australia, she would return to live with her parents. The mother says that the parties agreed that the child would live with her provided that she did not re-marry.
Following the divorce, the father would visit Country C every few months and see the child.
The mother says that in March 2018, the child became an Australia citizen by descent. The mother says that this was something that she agreed with.
In July 2020, the mother says she received telephone calls from the Australian Embassy in City E inquiring whether she had signed documents for the child to be issued with an Australian Passport. The mother informed the Australian Embassy officials that she had not signed any documents and had not provided any consent.
On 14 January 2021, during an occasion when the father was visiting Country C, he spent time with the child. The father did not return the child that night, and the following day the mother telephoned the father and he informed her that he was on his way and would call her soon. The mother says that she now realises that the father was actually on his way to the airport.
On 16 January 2021 the mother’s mother received a message on her phone from the father that said:
31.… “[X] and I are in Australia and that I have brought her here to treat her, show her siblings, and in a few months I will return her. Do not worry or make a big deal out of it.” …
(Mother’s affidavit filed 15 November 2021, paragraph 31)
The mother says that upon receiving the text message she contacted the father who told her he would return the child soon. The mother has not spoken with the child since 7 June 2021.
The mother gives evidence that on 30 June 2021, she was informed by the Department of Foreign Affairs and Trade that the child’s passport had been cancelled. The mother gives evidence that she does not know whether the child holds a passport for any other country, including Country C.
The mother gives evidence that since the child’s removal from Country C, she has sought assistance from courts in Country C for the child’s return, and has commenced what she describes as a criminal complaint. The mother gives evidence that she has also commenced what is described as custody/guardianship proceedings in Country C, which were listed for hearing in November 2021, and then postponed to December 2021 and subsequently February 2022. The proceedings were back before the court in Country C on 8 March 2022 and adjourned to a future date.
The mother has attempted to obtain a visa to enter Australia but the application was refused. If her orders are granted, she proposes to apply for a tourist visa or alternatively her brother will travel to Australia to collect the child.
The mother has continued to attempt to contact the father. The mother gives evidence that the father told her niece in late 2021 that he did not want the child to speak with any members of the mother’s family, as he did not like her remembering the mother because it would “affect her psychological status” (mother’s affidavit filed 21 February 2022, paragraph 22). The father also told her niece that the child has adapted to Australia and has forgotten her birth language.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
As referred to above, there are already proceedings in Country C instituted by the mother for custody/guardianship in relation to the child. Until the child was removed from Country C without the mother’s consent, the child had lived her entire life in Country C and the mother had been the child’s primary carer.
In ZP v PS (1994) 181 CLR 639, the High Court held at 647:
When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction. …
(Footnotes omitted)
Section 67ZC of the Act provides that the Court has jurisdiction to make orders relating to the welfare of children. Such a determination requires the Court to consider the best interests of the child as the paramount consideration.
Section 60CC Considerations
The Court determines what is in a child’s best interests by reference to the matters set out in s 60CC(2) and s 60CC(3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) requires the Court to give greater weight to the issue of harm and/or risk identified in s 60CC(2)(b).
A child is entitled to a relationship with both parents. The father has acted in a way that deprives the child of such a relationship with her mother. Having considered the primary considerations, I turn then to the additional considerations.
Additional Considerations
Not all of the additional considerations are relevant in this particular application. The matters that are relevant to my determination are ss 60CC(3)(b), 60CC(3)(d) and 60CC(3)(i).
Having regard to those sub-sections, I find that the child had a relationship with the mother up until the time of her wrongful removal. The mother gives the following evidence in her affidavit filed on 15 November 2021:
34.When I was talking to [X] she would tell me that she missed me as much as the universe and the world and the sky and that she just wanted to hug me. She was counting the days to come back to me and told me that her dad and his new wife [Ms F] had said that she was going to come back to [Country C] and be with me after one month. During her time in quarantine [X] became very unwell with pain in her stomach and vomiting. I would always speak to her to calm her down and make her feel better. She genuinely believed that she was going to be returning to [Country C] and would say to me words to the effect of ‘Mama, are you coming to come and pick me up from the airport’.
That evidence demonstrates the closeness of the child’s relationship with her mother, and that the separation from the mother was traumatic and distressing to the child.
Section 60CC(3)(i) relates to the attitude to the child and the responsibilities of parenthood. In my view, the father has failed in his responsibility as a parent. The evidence before me comfortably satisfies me that until the child’s wrongful removal, the child had lived her entire life in Country C and the child’s primary, if not sole carer, had been the mother. The father was spending sporadic periods with the child until he removed her from the mother’s care without her consent or notice on 14 January 2021.
The removal of the child from her primary carer is the antitheses of responsible parenting. It shows a callous disregard for the child’s welfare and exposes the child to undoubted distress. The text message sent by the father demonstrates little regard for the welfare of the child, or how the child might react to being so suddenly removed from her primary carer. The father continues to prevent the child from seeing her mother and continues to retain her in Australia. I am comfortably satisfied in view of the father’s conduct that the father has in the past and continues to act in a way that reflects poorly on his responsibility as a parent. I find that there is a need to protect the child from such conduct.
The father’s actions in removing the child from the mother without her consent and removing her to Australia demonstrates an entirely inappropriate attitude to the responsibility of parenting and towards the child. The fact that the father has compounded such entirely inappropriate conduct by preventing the child from speaking to the mother and/or failing to return the child to the mother, demonstrates to me a significant concern in relation to his attitude to parenting and his capacity to meet the emotional needs of the child.
CONCLUSION
In light of the above matters, I am satisfied that orders need to be made for the child’s immediate return to her mother.
The mother sought orders in a document that was tendered and became Exhibit 1.
Orders granting sole parental responsibility to the mother, with an order that the mother be at liberty to return the child to Country C are appropriate. To facilitate such an order, the child is to be delivered by the father to the mother or her nominee at a place and time as directed by the mother, and the mother is thereafter at liberty to remove the child from the Commonwealth of Australia and return the child to Country C.
To that extent, it was necessary to make orders that permit the mother to apply for a passport and other travel documents without the father’s consent.
It is appropriate in the meantime to make a Watchlist order restraining the father from removing the child from Australia, and I propose to include a request directed to the Department of Home Affairs to provide all documents and assistance to the mother to enable her to enter Australia, and thereafter, to return the child to Country C.
In circumstances whereby the form of order that I made is not one that the father has had notice of, I propose to grant to both the father and mother liberty to restore the matter before me on 24 hours’ notice.
I include the mother in that liberty to restore in the event that there are difficulties in having the child returned to her, or in circumstances where the father does not comply with the orders. The mother may wish to seek, should she be advised, in the event of a failure to comply with my orders, a warrant.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 March 2022