Asaad & Noor

Case [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…

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Asaad & Noor [2022] FedCFamC1F 135
Case
[2022] FedCFamC1F 135
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CaseChat Overview and Summary

In the matter of Asaad & Noor, the parties were engaged in a dispute concerning the care and custody of their child, [X]. The mother, who is the primary carer of the child, sought orders to ensure the child's return to her and to prevent the father from removing the child from Australia without her consent. The father had previously removed the child from the mother and relocated her to Australia, actions which the mother contested as being against the child's best interests. The legal issues before the court were whether the father's actions constituted an inappropriate attitude towards the responsibilities of parenting, and if the child's removal to Australia would be detrimental to her welfare.

The court examined the additional considerations outlined in the Family Law Act, particularly sections 60CC(3)(b), 60CC(3)(d), and 60CC(3)(i), to determine the child's best interests. The evidence presented indicated that the child had a close and significant relationship with her mother, and her removal was both traumatic and distressing. The court found that the father's actions demonstrated a callous disregard for the child's welfare, failing to consider the emotional impact of such a sudden removal. The father's conduct also showed a significant concern regarding his capacity to meet the child's emotional needs, as he continued to prevent the child from contacting her mother.

In light of these findings, the court concluded that orders should be made for the immediate return of the child to her mother. The court granted sole parental responsibility to the mother, allowing her to return the child to Country C, and made provisions to facilitate this. Additionally, the court issued a Watchlist order to prevent the father from removing the child from Australia and requested assistance from the Department of Home Affairs to support the mother in obtaining necessary travel documents. The court also provided liberty to both parents to restore the matter if there were difficulties in executing the orders. The court's decision emphasised the child's entitlement to maintain a relationship with both parents while ensuring her welfare and emotional needs are prioritised.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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