Clayton and Bant (No 2)

[2018] FamCA 839

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT (NO. 2) [2018] FamCA 839

FAMILY LAW – CHILDREN – With whom a child spends time – Where the rehearing is limited to determine how much time the child is to spend with the father and what conditions that time should be subjected to – Where the father and the child have maintained a loving relationship and the child wants to spend more time with the father – Where the father has little difficulty in meeting the demands and expense of spending ongoing supervised time with the child in Australia – Where the father puts his wellbeing and feelings about the mother ahead of the child’s – Where the mother now holds a genuine belief that the father would take the child outside of the jurisdiction without her knowledge or consent – Where the mother will not return to live in that country – Where the Court makes a finding that there is a real risk that the father will unilaterally take the child outside of the jurisdiction to live with him should supervised time not be ordered – Where this risk is unacceptable because of the consequences to the emotional wellbeing of the child should she be removed from the jurisdiction – Where it is in the child’s best interests to spend supervised time with the father in Australia until her 18^th birthday.

FAMILY LAW – COSTS – Where the mother made an application seeking for a witness to give evidence via electronic communication – Where it was unreasonable for the father to oppose such application and then change his position and indicate his willingness to consent to such an order once the application was listed for hearing – Where the father is ordered to pay the mother’s costs fixed in the sum of $1,967.05.

Family Law Act 1975 (Cth)

APPLICANT: Ms Clayton

RESPONDENT: Mr Bant

FILE NUMBER: LEC 310 of 2013

DATE DELIVERED: 18 October 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 31 July, 1 and 2 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC with
Ms McDiarmid

SOLICITOR FOR THE APPLICANT: Parker & Kissane

COUNSEL FOR THE RESPONDENT: Mr Kirk QC

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. That the Order made by Justice Forrest on 2 August 2017 re-instating Orders 10, 11, 12 and 13 of the Orders of Justice Kent of 19 November 2013 on an interim basis, is discharged.

2. That commencing on the date of these Orders, the child, Y born … 2009, (“the child”) shall spend time with the father when he is in Australia at all such times and places as may be agreed in writing in advance by the mother and the father.

3. That failing agreement otherwise, the child shall spend time with the father when he is in Australia as provided for in paragraph 4 hereof, subject to and conditional upon the following conditions being fulfilled in respect of each period:

   (a)the father shall advise the mother in writing of his intention to travel to Australia and spend time with the child fourteen (14) days prior to such travel and shall confirm in that advice the period and end date of such travel or visit and he shall also advise the mother in writing of the child’s contact details whilst she is spending time with the father;

   (b)the father’s Australian lawyers shall confirm in writing to the mother’s nominated lawyers that they are then holding the father’s current valid passport pursuant to an irrevocable authority from the father to retain the passport until a specified date to be provided in that written confirmation;

   (c)LC Services, or such other commercial provider of supervision services as the parties may agree, shall confirm in writing to the mother’s nominated lawyers:

   (i)their availability and retainer by the father to supervise time in accordance with the time provided for in paragraph 4 or, alternatively, such part or parts of that time or times as they are available and retained in respect of any proposed period; and

   (ii)their confirmation that it is a term of their retainer to forthwith notify the mother and her lawyers by telephone, text message or other speedy means of any breach by the father of the times or places set out in paragraph 4;

   (d)the father shall advise the mother in writing of the child’s contact details whilst spending time with the father.

4. That the child shall spend time with the father in periods notified in accordance with paragraph 3:

   (a)supervised at all times by LC Services or such other commercial provider of supervision services as the parties have agreed; and

   (b)for the whole of, or so much of the following times as the father can arrange and be supervised:

   (i)for a period of twelve months (or more if it takes longer for the three lots of blocks to be had), for three lots of sixteen day blocks, four days with the father and two days with the mother alternating for the entire sixteen day period;

   (ii)at the conclusion of that period within which three lots of sixteen day blocks has occurred, for a period of twelve months (or more if it takes longer for the three blocks to be had) three lots of nineteen day blocks, five days with the father and two days with the mother alternating for the entirety of the nineteen day period;

   (iii)at the conclusion of that period within which three lots of nineteen day blocks has occurred, for a period of twelve months (or more if it takes longer for the three blocks to be had), for three lots of twenty-two day blocks, six days with the father and two days with the mother alternating for the entirety of the twenty-two day period;

   (iv)at the conclusion of that period within which three lots of twenty-two day blocks has occurred, for three lots of fourteen day blocks in each year thereafter, with the child spending the whole of the fourteen days of each block with the father;

   (c)at places as agreed between the parties in writing from time to time and failing agreement within a radius of 125 kms of the township of B Town, New South Wales; and

   (d)the child is not to miss school if any of the blocks of time she spends with the father fall during school term.  

5. LC Services, or such other commercial provider of supervision services as is to provide supervision of time, shall be provided by the father and the mother with a copy of these Orders and reasons for judgment and in that respect publication is permitted pursuant to s 121 of the Family Law Act 1975 (Cth).

6. The father shall pay the mother’s costs of and incidental to an Application in a Case filed by her on 19 July 2017 fixed in the sum of $1,967.05 within fourteen days of the date hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clayton & Bant (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 310 of 2013

Ms Clayton

Applicant

And

Mr Bant

Respondent

REASONS FOR JUDGMENT

1. These contested parenting orders proceedings were heard by me over a three day trial in July and August of last year.

2. I regret not having been able to deliver this judgment before now. The responsibility, over all of the intervening months, to deliver judgments in numerous cases heard prior to this one, to hear many other difficult parenting and property cases, and to hear and determine many other interim applications in matters still awaiting final hearing has contributed significantly to my inability to get this judgment delivered before now. In addition, the requirement for Judges of this Court to take sufficient recuperative leave to enable them to be emotionally and intellectually fresh enough to be able to properly consider the many very troublesome cases that come before them has also contributed to the delay.

3. I do appreciate that delay in delivering judgments in matters such as this one, particularly in circumstances where the proceedings were first commenced in the Courts in 2013, is likely to add to the emotional burden that the parties are already bearing simply by their being in serious dispute about their co-parenting of their child. I regret the delay in this case and fervently hope that delivery of this judgment now in some way reduces that burden for the parties.

What is in Issue?

1. The parenting dispute between these two parties is about their daughter, the child, who was born in Australia in 2009. She is now nine years old. Her parents separated in July 2013, when she was four years of age. She has lived with her mother in Australia ever since, only intermittently seeing her father in the intervening years, though, by his choice, not at all in 2016.

2. On 19 November 2013, Kent J of this Court made final parenting Orders as between the parents, after having expedited the matter and hearing it ahead of hundreds of other matters already in the pending cases list of the Brisbane Registry of this Court and after having heard the parents’ competing applications over 5 days in October that year.

3. His Honour’s Orders conferred parental responsibility for the child equally on the parents, save for the mother being given sole parental responsibility for “the location of residence and travel of the child”. Those Orders provided for the child to live with the mother in Australia. The father had sought Orders that the child be immediately returned to the United Arab Emirates (“UAE”) to live with the mother there and to spend time with him, but to live with him if the mother chose not to return to live there. The mother had made it clear she would not return to the UAE, so the father’s application effectively was for the child to live with him in the UAE. In addition to ordering the child live with the mother in Australia, Kent J made orders for all of the child’s time with the father to take place in Australia within a radius of 20 kms of B Town or at places otherwise agreed in writing between the parties, and for that time to be supervised at all times by commercial providers of supervision.

4. The father appealed against Kent J’s Orders. In November 2015, the Full Court allowed the appeal, in part, and ordered the matter to be heard again by another Judge of the Court, limiting the remit though to a determination of “the time the child is to spend with the ... father, and the conditions of the same, including whether that time is to be supervised or not”. The Full Court did not find error with his Honour’s decision to restrain the father from removing the child from the mother’s possession and removing the child from the Commonwealth of Australia, or with his Honour’s decision to request the Australian Federal Police to place the name of the child on the All Ports Watch Alert System.

5. The father applied to the High Court for special leave to appeal against the Full Court’s decision. That application was dismissed in April 2016.

6. The matter then came into my docket and was judge managed towards the mid-2017 trial.

7. At all times the matter has been before this Court, the parties have each had expert family law representation, including by some of the most experienced Senior Counsel practicing within the family law jurisdiction in the country. The financial cost to each of them has been enormous. So too, has the emotional cost.

8. In his written submissions on behalf of the father, Mr Kirk QC propounded the critical issues as being whether supervision can be justified having regard to the following matters:

   (i)The impact that indefinite supervision will have on the child’s relationship with the father;

   (ii)The risk of the father unilaterally taking the child from the jurisdiction back to live in the United Arab Emirates with him;

   (iii)The impact unsupervised contact will have on the mother’s mental state and whether that impact will abate over time.

9. Mr Kirk went on to submit that if the Court determines that supervision of the child’s time with the father is not required then the precise blocks of time that the child and father should spend together and where (outside school term) that time may be enjoyed within Australia remains to be determined. Finally, Mr Kirk submitted that of “critical importance” is how the Court deals with the mother’s assertion, given in oral evidence, that she “would not be able to hand [the child] over unsupervised” if the Court ordered that unsupervised time was to take place.

10. I did not apprehend Mr Lloyd SC, who appeared for the mother, to take issue with any of those submissions when he made his oral submissions at the end of the trial, nor, I say with respect, did I apprehend from the way in which he presented the mother’s case that there were other critical issues to be determined.

Some Background  

1. The following matters of fact were recorded by Kent J in his judgment. There is no dispute between the parties about any of these things.

   2.The Mother was born in 1977 and is now 36 years of age. [Of course, she is now 41 years of age] She was born in Australia and is an Australian citizen. Whilst she is recorded as having converted to Islam when she married the Father in Dubai she does not adhere to that religion and is not a practicing Muslim. She identifies as a woman of Western culture and, specifically, as an Australian. The Father was born in 1973 and is now 40 years of age. [He is now 45 years of age] He is a United Arab Emirates (“UAE”) national and adheres to the Muslim faith. He identifies with his Arab culture as an Emirati. 

   3.The Mother commenced living in the UAE by reason of her employment there in about 2001. In about 2006 she there met the Father. They married in 2007 in Dubai and separated on 5 July 2013 whilst on holiday in Australia.

   4.Throughout their relationship and from the time of the child’s birth the parties resided in Dubai but also spent significant time in Australia. In Dubai, the Father is a director and part owner of his family company known as the Bant Group which has business interests in ownership of a resort known as the ZZ Resort; restaurants; hospitality; publishing and advertising; boat building and importing and exporting.

   5.It is clear that the Father is a man of significant wealth and his family comprising his mother, brother and two sisters are of very substantial means, including via the Bant Group. For example, the Father’s family own a four bedroom apartment in Paris available for their use and also have property in South East Asia. As testament to the substance of the Bant Group is the fact that the Father referred during his oral evidence to a building housing some 700 employees of the Bant Group in Dubai.

2. The mother was born and raised in B Town in northern New South Wales and has again lived in the B Town area with the child since the separation in 2013. As I have already observed, the child, the child, was born in Australia, after the mother chose to return to Australia from the UAE to give birth to her in 2009. The child holds Australian citizenship and has an Australian passport. As is relatively well known now, the Australian Government recognises dual citizenship of Australians who may wish to retain or attain, if they can, citizenship of another country, though having acquired Australian citizenship by birth or otherwise. The child is also a citizen of the UAE, her father having registered her birth in that country as well. The evidence, seemingly not disputed, was that the Government of the UAE does not recognise the dual citizenship of Emirates citizens. That said, it follows, I consider, that the Government of the UAE does not recognise that the child is an Australian citizen.

3. Both parties had been previously married before they married each other. Indeed, the evidence supports a finding that the father was still married to his first wife when he married the mother in the UAE, only subsequently divorcing his first wife during his marriage to the mother. Clearly, polygamous marriage, at least for men, is permitted by law in the UAE. Furthermore, whilst the father obtained a divorce from the mother in a UAE Court in 2015, he had already married another woman before he had obtained that divorce from the mother.

4. The father also has another daughter born of his first marriage. She is now almost 20 years of age, and, at the time of the trial before me, was studying in the UK, although at the time of the trial before Kent J the father asserted that she might undertake her tertiary studies in Australia. That daughter used to spend time with the father and the mother and the child when they all lived together in Dubai and is, thereby, known to the child as her big sister.

5. The father and his current wife also had a baby boy who was still an infant at the time of the trial before me. The father had not brought him to Australia on any of his visits, and the child had not, therefore, spent any time with him. She knows of his existence though.

6. From the time of her birth in 2009 until the time of her parents’ separation, the child had spent about the same amount of time in total, if not a little more, in Australia, as she had in Dubai. Over the years since the child’s birth the parties regularly travelled to Australia with the child, and for extended periods the child and the Mother remained in Australia whilst the Father attended to his business interests in Dubai. Indeed, the child and the mother spent the majority of 2012 in Australia, some of those months without the father being present at all.

7. The parties, had at some point whilst still together, planned a future life in Australia. A number of valuable properties were acquired with a view to the parties being based in Australia in the long-term. 

8. However, for reasons I do not need to go into in this judgment, the parties’ relationship became troubled and the mother determined to separate from the father. It is clear that she carefully planned that separation before their last trip to Australia as a family in 2013, intentionally planning to separate from the father whilst in Australia on that trip to avoid ending their relationship in the UAE. I am satisfied that she did that because of her concerns about having parenting issues resolved in the UAE according to the laws of that country.

9. In his judgment, Kent J also made the following findings that are not in dispute:

   20.On 15 June 2013 the parties travelled to Australia with the child and also R [the father’s other daughter], the Father’s mother and sister, and domestic employees of the Father. Return flights to the UAE had been booked for the parties and the child for 2 September 2013. However, on 2 July 2013 the Mother instituted these proceedings in the Federal Circuit Court in Lismore and on or about 5 July 2013 the Mother obtained, on an ex parte basis, an apprehended domestic violence order in the B Town Magistrates Court which order listed the child as a protected person. Thus, on 5 July 2013 the parents finally separated and the Mother and the child have remained living in the U property since then. The Mother had also caused the child’s name to be placed on the Airport Watch List. 

   21. The Father and his family members at that time left the parties’ property at U Town near B Town and commenced occupation of the [H Town] unit. His family members subsequently returned to Dubai and the Father has since then either remained in Australia in the B Town area or has returned briefly to Dubai from time to time to fulfil visa requirements and to attend to his business.

1. In the period of just over three and a half years between Kent J’s November 2013 judgment and final Orders and the trial before me last year, the time that the child and the father have spent together has been supervised as required by his Honour’s Orders.

2. In that respect, it is undisputed that the child’s time with the father has occurred on the following dates in those years :

   First visit – 30, 31 May, and 1, 4, 5, 7, 13, 14, 15, 18, 19, 21, 22 June 2014

   Second visit – 28, 29, 30 November, and 6, 7 December 2014

   Third visit – 26, 29, 30 April and 1, 2, 3 May 2015

   Fourth visit – 9, 10, 12, 13, 16 December 2015

   Fifth visit – 27, 28, 29 January and 1, 2 February 2017

3. The child also got to spend time with the father in early June 2017 just before the interviews that were conducted for the family report that was adduced into evidence in the trial before me.

The Principles by which this Current Dispute is to be Determined

1. As the matters I have to determine in this parenting dispute have been limited by the Full Court’s remit, I do not have to determine the issue of parental responsibility. In deciding whether to make a particular parenting order in relation to the child, the child, I must regard her best interests as the paramount consideration. See s 60CA of the Family Law Act 1975 (“the Act”).

2. Section 60 CC (1) requires me to consider the matters set out in sub-ss (2) and (3) in determining what is in the child’s best interests. Those subsections divide the matters into what are described as “primary considerations” and “additional considerations”. The primary considerations are limited to two matters. They 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.

3. Subsection (2A) of s 60CC provides that in applying these two primary considerations, greater weight is to be given to the second of them.

4. The “additional considerations” include a long list of specific matters, but the list concludes with the very non-specific consideration of “any other fact or circumstance the court thinks is relevant”, making it a broad inquiry, indeed.

5. Whilst consideration needs to be given to these matters set out in the subsections, it is not essential to go through each one, setting out findings pertaining to each, seriatim in a judgment. Given the limited nature of the matters to be determined by the Court, the listed matters, and “any other fact or circumstance”, are to be considered in so far as they might be relevant to those limited matters to be determined.

Discussion of Some of these Matters

The nature of the Child’s relationship with the Father

1. I viewed some photographs and short videos taken by the father that were adduced into evidence, purportedly taken by the father in a period of a few days after the trial before Kent J and before his Honour’s judgment was delivered, when the father, the mother and the child actually spent time together in each other’s company.  I am satisfied that those still and moving images demonstrated a happy child, quite content at being in her father’s company at that time.

2. The family report writer, in his June 2017 report, also wrote of his observations of the child with the father, his own conversation with the child and some opinions he formed.

3. The family report writer said that he thought the child was “articulate and cognitively strong”. He observed her to come “willingly to spend time with the father” just before he brought the father and the child together and said that she “greeted her father warmly” and was “clearly delighted to see and spend time with [him]”. The family report writer went on to say that the “two of them appeared very comfortable with each other”. He opined that there was nothing untoward with respect to their verbal interaction and reciprocity. The child was observed to display no “anxiety, avoidance or withdrawal” in her father’s company and her body language demonstrated that she was “relaxed and comfortable”. Indeed, the family report writer expressed the opinion that they were very comfortable with each other.

4. I accept this evidence of the family report writer. I consider it significant in that it shows that in circumstances where the father had only six visits to Australia between the visit depicted in the photographs and videos I have just referred to and the family report writer’s observations, the father and the child have maintained a warm and comfortable relationship. I consider it also of note that this is apparently the case despite the fact that each occasion of time spent together in those years has been closely supervised and notwithstanding there having been a period when the child spent no physical time with the father between mid-December 2015 and late January 2017.

Any views expressed by the Child

1. I was able to learn through some evidence of the child’s own views about some aspects of the matter. The family report writer interviewed the child and wrote of his interview. He said that she complained about Skyping the father every two days as the father “says the same thing all the time and it’s boring”. She is reported to have told the report writer that she sometimes gets angry at her father “if he doesn’t stay for long”.

2. The child was reported to have said that she wants more time with her father -“maybe only three nights cause sometimes I really miss my Mummy”.

3. Of note, the child is also reported to have told the report writer that she did not know why the supervisors were there when she spent time with her father, but that she did not mind them being there. Further, she did not know if her father minded the supervisors being there because “he’s never told me”. She is also reported to have said that she did not mind sleeping in the same room as the supervisors.  She is reported to have expressed a wish that her father “came more”.

4. The report writer wrote that the child said that she would like to go to Dubai and did not know why she cannot. When she was asked if her father talked to her about taking her to Dubai she is quoted as responding “a lot. He convinces me to go there. Mum records it on her phone”.

5. As is required, those views are taken into account when considering what is in the child’s best interests and what parenting orders are to be made having regard to the child’s best interests.

The Child’s relationship with other members of the Father’s family

1. As I have already remarked, the child knows her big sister, R, and has a relationship with her. R is now studying in the UK. Whilst the evidence establishes that the father has brought R with him on at least one of the visits he has made to Australia in recent years, it is unclear whether it is intended that she will be travelling with the father, or how often she will be travelling to Australia with him in future years.

2. At the time of the trial, the child had not spent any physical time with the father’s infant son of his latest marriage, so there was no evidence of any attachment there at all between her and her baby brother. The desirability of both of those children, as half-siblings, knowing each other and being able to develop some form or relationship is undoubted in my view. If the father brings that child with him on his visits to Australia the process of the two children beginning to develop a relationship will be able to commence. That is a matter completely in the hands of the father. I accept the father would like to bring his son and his current wife to Australia with him when he travels here to visit the child, the child. 

3. As for other members of the father’s extended family, the continuation of any relationship that exists between them and the child will depend, most significantly, upon them travelling to Australia with the father, so that they, too, can spend time here with the child. Relationships with those persons, of course, would be best fostered, I accept, by arrangements where they spend time with the child without supervisors present. That said, if the time continues to be supervised, it does not prevent these other family members being present and from being able to maintain any existing relationships.

The extent to which the Father has taken, or failed to take, the opportunity to spend time with and communicate with the Child

1. Kent J’s Orders placed no limit on the number of times the father could travel to Australia in any period, whether by reference to months, school terms, years or any other measurement of time. His Orders simply provided for the child to spend from Friday afternoon to Sunday afternoon of each second weekend of any such time the father is in Australia with the father, in addition to one overnight visit during the second week of any such visit and from 9:00 am on the Saturday to 5:00 pm on the Sunday of the other weekend during any such visit.

2. Although there was no limit included in the Orders on the number of visits the father could undertake to Australia, UAE based family and business commitments are offered up by him as the explanation for there having been only six visits in three and a half years. The father also told the Court that there had been no visits in 2016 as he and his latest wife were concentrating much effort around achieving a pregnancy with specialist medical assistance that involved travel to other countries.

3. The father, however, conceded that in the same period of years he had travelled extensively. Whilst some of that travel, he said, was for business, some of it involved holidays with his oldest daughter, and in 2016, the year he did not visit Australia, he told the Court, he spent 80 – 90 days in Europe, in addition to spending 20 to 30 days in that country in each of the other years. 

4. This evidence is, in my judgment, supportive of a finding, which I make, that the father has not taken as much advantage of the opportunities given to him by Kent J’s Orders to spend time with the child as he could have, notwithstanding the distance and the cost involved. 

5. As for communication with the child in that same period, Kent J’s Orders provide for the child and the father to communicate “by telephone or Skype at such times as the child reasonably requests but otherwise between 6 – 7 pm (New South Wales local time) on each alternate day when she is not otherwise spending time with the Father”. The Orders obliged the mother to “ensure that the child is available to receive the telephone or Skype call” and to “arrange for the child to telephone or Skype the Father on the following night, if for any unforeseen circumstance, the child misses the telephone call or Skype call from the Father”.

6. The evidence satisfies me that the father did maintain regular communication with the child in the years between the time the Orders were made and the trial before me. However, there was apparent tension between the parties during that time around the father’s preferred use of Skype to communicate with the child on an iPad she had been bought, rather than speaking to her on a telephone as the Order also provided for as another alternative. The evidence demonstrates conflict between the parents when the mother and child were out and about at the time of the father’s attempts to communicate with the child, with the father demonstrating strong unwillingness to speak to the child by telephone in lieu of through Skype video conferencing.

7. Apart from demonstrating some apparent ambiguity in the wording of the Orders that made the disagreements and conflict possible, the evidence also demonstrated to my satisfaction the father’s angry reaction to things not going according to his expectations and demands, as well as significant inflexibility on his part around the issue. Importantly, I consider, the evidence demonstrated that the father often appeared to place his expectations that the communication was to happen as he expected it to (that is via Skype) above actually speaking with the child using the telephone, apparently forsaking that opportunity when it was offered to him in lieu of a Skype conversation.

The practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. As already observed, the father travelled to Australia six times between November 2013 and the trial before me in July/August 2017. Each trip cost him a lot of money by anyone’s standards. The evidence established that each time he travelled, first class airfares were purchased, at least for him and, on the several occasions that his mother accompanied him, for his mother as well. On other occasions, he flew male and female employees out with him, for various purposes. He has paid for accommodation for all of his party each time they travelled. He has paid for the hire of motor cars on each of his visits. He has paid a lot of money for the private supervision that has been required on each of his visits, provided by a commercial service provider. Such expense would place such arrangements beyond the reach of most people, but not the father, such is his wealth.

2. At the same time, the father has spent hundreds of thousands of dollars on legal representation in these proceedings. Indeed, he also made it clear during the trial that if he does not like the parenting orders that I make, he will appeal against those, and if he does not like the result of that appeal, he will again seek special leave to appeal to the High Court. It is reasonably clear, in my judgment, that financial cost is no barrier to him in this respect.

3. It is fair to conclude, in my judgment, particularly given the fact that no serious case to the contrary was made by those representing the father, that all of this expense, particularly surrounding his travel, his sojourns in Australia and the supervision of his time, is no real problem for him. Although the father did express some concern about the cost of maintaining contact with the child if the supervision requirement is maintained, it was simply not a notable part of his case that he will not, or might not, be able to continue to afford to pay for the costs involved in travelling regularly to Australia and even having the expensive supervision of his time with his daughter continue, if that is considered in her best interests to be necessary. I do not consider that it was seriously submitted by Queen’s Counsel for the father that expense was a major hurdle.

The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents and the Capacity of the Father to provide for the needs of the Child, including emotional and intellectual needs

1. I set out some consideration of these matters, directly following on from what I have just set out, as I am satisfied there is a clear link between these matters. It became apparent, hearing the father in the witness box as I understood him, that he was expressing a likelihood that his interest in regular visits to Australia and his intention to continue them will wane if the requirement for his time with his daughter to be supervised at all times is maintained by the Court. He also appeared to me to be unmoved by the evidence that the child does not herself appear to be troubled by having the supervisors around. Again, this caused me to be concerned that the father appears to be putting his own needs and feelings ahead of the child’s feelings or needs.

2. The report writer, Mr BC also expressed the opinion that it “appears unlikely” that the father would avail himself of longer blocks of time with the child if that time was supervised.

3. The evidence also satisfied me that the father sometimes raises things with the child in his conversations with her, which would not be positive for her, emotionally. For example, he has spoken to her about getting on a plane and coming to Dubai, apparently encouraging her to do it. He has spoken to her about material things he will, or has already procured for her in Dubai, such as a pony. He has panned the iPad video camera around the room in his home in Dubai that used to be the child’s bedroom, talking to her about it at the same time. He has also made it clear to the mother that his preference is to have the child living back in the UAE, even though he is well aware that the mother will not return to that country. He has not conveyed to the mother any acceptance or understanding of her decision to take the child to Australia and to remain there, when she was quite clearly, of the two parents, primarily responsible for providing parental care for the child. He has made it clear to the mother that he fully expects the child to resent her as she grows up, and that the child will want to return to him and his family and their lifestyle in the UAE. He has not demonstrated, as far as I am satisfied, any intention or any actual capacity to do anything other than to foster and encourage such resentment as the child grows in age and maturity.

4. He has not displayed any forgiveness of the mother for what he perceives to be the great wrong that she has done him and his family by returning with the child to live in Australia. I am satisfied that he has made it clear to the mother, by his words and his actions, that he will use his wealth and his determination, to the full extent available to him to achieve what he considers is right. I am satisfied that he is doing that without any obvious or apparent regard for the impact of his determination and decisions on the mother and her emotional and financial wellbeing and the consequential impact or potential impact on the child.

The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child.

1. The mother’s evidence was as follows:

   ·That the father paid no child maintenance from July 2013 (separation) to November 2013;

   ·That he paid $3,500 per month for the support of the child from December 2013 until June 2014;

   ·In February 2015, in the context of an application in the proceedings, the father agreed to an order to pay $400 per week for the child’s maintenance, and began paying an amount that varies due to currency exchange fluctuations, but which has never been $1,600 per month;

   ·That the amount of money the mother receives from the father does not cover the costs of raising the child;

   ·That the father does pay the child’s school term fees and has been paying them since late 2014.

2. The father’s evidence was that from February 2015 he has paid $1,620 or thereabouts per month and that, from time to time, he pays for the child to go horse riding, to do gymnastics and to have music lessons. He said he estimated that he spends about $3,000 per annum on these extracurricular activities. His documentary records attached certainly support his assertion about the $1,620 per month being transferred from Dubai.

3. I do not disbelieve the mother on this point though. It is entirely possible that the mother’s bank here in Australia, into which the funds are transferred from Dubai, deducts a small fee from the father’s transfer that reduces the amount to just below $1,600 as the mother says.

4. There is some evidence of conversations between the parents where the father clearly asserts to the mother his view that $1,600 per month is well and truly enough to pay to the mother for the child’s financial support. That evidence is to be seen in the context of the father being a person who is a multi-millionaire, whose lifestyle choices demonstrate very little concern for any need for frugality in many other respects.

5. I am satisfied that again this is support for a finding that the father puts his negative feelings about the mother ahead of more balanced consideration of his child’s needs. 

Is there a need to protect the Child from harm caused by abuse?

1. As the family report writer points out in his concluding remarks, the evidence supports findings that the father has engaged with the child (during his supervised time with her) in a very positive manner, “with no evidence arising to suggest that he has been abusive in any way whatsoever”. The evidence supports a finding that there is a loving relationship between the father and the child and that the child, herself, wants to spend more time with the father.

2. It cannot be said, nor do I consider the mother’s case involves a current assertion to the effect, that the child’s time with the father needs to be supervised to protect her from any physical harm or any emotional or psychological harm from any form of non-physical abuse, save for the emotional harm that she might suffer if she were unilaterally removed by the father from Australia to the UAE and never returned to Australia.

What effect might indefinite supervision of the time the Father and Child spend together have on their ability to maintain a meaningful relationship?

1. At the outset of my consideration of this aspect of the matter, I accept the view expressed by the report writer that supervision is “extremely inhibiting in the development of a relationship”. That said though, the evidence suggests that up to the time of the trial before me, the relationship between the father and the child has remained what can only be described as a good one. I certainly would not describe it as being other than a “meaningful” relationship, particularly from the perspective of the little girl.

2. The report writer also expressed the opinion that the arrangements that have been in place from 2013 with respect to the child spending time with her father do not appear to have had any impact on the child’s “overall psychological functioning”, save for the fact that he pointed out that she has “felt sad and possibly rejected because her father has not spent more time with her in Australia than he has to date.” The report writer went on to opine that if she continues to have feelings of rejection, those feelings could negatively impact upon her self-esteem and self-worth. I will consider that a little more, further on.

3. However, as the father is reported to have pointed out to the report writer and the report writer appears to have accepted, the child has been starting to become “bored with the activities that are available under the current restrictions”. The report writer also expressed the opinion that if supervision is to continue and is extended to longer periods of time between the child and the father, the child will come to learn, as she continues to develop cognitively, that “it is only acceptable to spend time with her father with another responsible adult being present”. The report writer opined that “around the age of ten” (which is now less than a year away) the child will begin to start questioning why supervision is necessary and, if it is still in place, and she is told why, she will then likely consider that her father is not trusted by her mother or by the Court.

4. I have no reason not to accept the reported opinions of the report writer that I have just referred to.

5. The family report writer went on and expressed the opinion that even in those circumstances, the relationship between the father and the child would still be “a meaningful relationship”, but he appeared to express doubt as to whether it would be “a valuable or positive relationship”, although he did not actually go on to state that it would not be.

6. The expert’s opinions satisfy me that if the father does continue to regularly communicate with the child by Skype or telephone and does continue coming to Australia on a regular basis, at least a few times each year, to spend time with the child, even if it is supervised, their meaningful relationship will continue as the child grows into adolescence and then into adulthood. She is, I am satisfied, most unlikely to feel rejected if he does continue to regularly come to Australia to spend time with her, particularly if it is at least two or three times per year for a few weeks at a time.

7. Considering the report writer’s opinion further, whether the relationship will remain a “valuable” or “positive” one, if it continues to be supervised, will largely depend, in my judgment, on the emotional connection developed between the father and the child, whether the child develops a sense of being unconditionally loved by her father as opposed to a sense of being rejected, and whether her own feelings of trust in her father develop and are nurtured by him, regardless of any supervision.

8. The only way, in my judgment, that the child can truly develop that sense that the father loves her unconditionally and wants to have a continual, meaningful relationship with her that is both “valuable” and “positive”, in circumstances where she is not permitted to leave Australia before adulthood, is for her to form those views from her own experiences with the father. Whilst the opportunity for her to form those views might indeed be somewhat restricted where all time with the father is supervised, I do not accept it is necessarily impossible if supervision is nevertheless kept in place. To a significant degree, whilst accepting that supervision of the child’s time with the father will likely make it more difficult, the path to that outcome, in my judgment, is in the hands of the father - in the way that he reacts to the circumstances that present, in the number of times he comes to the country to spend time with her, in the way that he physically, verbally and emotionally interacts with the child when he is with her, whether his time with her is supervised or not.

9. If, for example, the Court orders supervision to continue, and the father reacts badly to that and reduces the number of visits he makes to Australia and the length of time that he stays on each occasion (which both the father and the report made clear was something that could happen if supervision remains in place), then it would be the father’s own actions that would thereby significantly impact upon the prospects of a meaningful relationship continuing to exist and develop, rather than the fact that his time with the child was ordered to continue to be supervised.

10. It is, for me at least, somewhat troublesome having to consider whether supervision of the father’s time with the child should be ordered to continue or not because there is a realistic prospect that the child’s opportunity to spend time with the father will be reduced by the father’s own negative reaction to the requirement of ongoing supervision. It is very difficult to see how any such negative reaction on the father’s part that resulted in the child seeing less of her father when the evidence shows she wants to see more of him, could be perceived as anything but a selfish, non-child focused display of attitude on his part. In my view, that would be the father’s reaction to the requirement for ongoing supervision, rather than the supervision itself, that would impact on the ability of the child to maintain a meaningful relationship with the father.

The Mother’s emotional wellbeing

1. The family report writer clearly expressed the opinion that the mother is already experiencing “subclinical levels of an Axis I condition”. He described that condition as an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He went on to acknowledge that the types of symptoms the mother describes she experiences are “also precursors to and symptoms of Major Depressive Disorder as well as other serious psychiatric conditions”. He goes on to say that there is “some likelihood that it would affect the quality of her parenting” and also that “[t]his may take the form of reduction in her capacity to engage with her daughter at an appropriate level to foster the child’s development”. He also said that “[o]ther risks include neglect (which appears unlikely with the presence of the maternal grandmother in the picture), and lack of attunement to the child’s needs across a range of domains”.

2. Having seen the mother in Court for the duration of the trial, and in the witness box under cross-examination, I accept the opinions that were there expressed by the report writer. I am also satisfied that the mother’s emotional health is a direct product of the stress that she is going through by her involvement in these proceedings and the property related proceedings that are also on foot at the same time, as well as what I accept is a genuine belief that there is a real risk that the child will be taken from Australia by her father if supervision of her time with him is removed. I confidently reject submissions made on behalf of the father that the mother’s clearly expressed concerns are not genuine and that they are false.

The genuineness of the Mother’s belief

1. In building his argument as to why the Court would not find the mother’s stated belief to be genuinely held, Queen’s Counsel for the father focused most particularly on evidence about what happened in the period not long after the trial before Kent J had finished - the period from 26 October 2013 to 6 November 2013. He highlighted the fact that at the trial before Kent J there had been evidence about the “inadequacy of Airport Watch, the holding of passports, injunctions and the like”. He then submitted that the Court would find that the mother, in that said period, provided contact without third party supervision over much of that period, and that she permitted the child to spend time alone with the father on three occasions during that time. The latter is what the father said happened but which the mother denies.  

2. The trial before Kent J concluded in Brisbane on 15 October 2013. His Orders were not made until 19 November, with extensive written reasons being published at the same time. The father’s affidavit evidence is that when that trial finished (well before the Orders were made) he “formed the view and belief” that he and the mother could reconcile. He said he wanted to do that so that they could resume life as a family. He said that he thought the mother wanted to reconcile with him, too.

3. His affidavit evidence was that from 26 October 2013 until 6 November 2013 the mother and the child “returned to reside with [him], first in [their] home in … B Town, and subsequently in an apartment owned by [him] [in AA Town]. [They] lived together as a family during this period and [his] belief that [his] relationship with [the mother] could be reconciled was consolidated during this period.”

4. The mother responded to that evidence in an affidavit in reply. She denied that they “returned to reside with” the father as he asserted. She said she believed that they only stayed with the father for about six days in total. She said that she lived at the U Town property until 30 October and that during that time the father was having time with the child supervised by a professional supervisor.

5. The mother said that on 31 October, a woman (who came from Sydney at the father’s request) arrived to “facilitate counselling between” the mother and the father. She stayed with the mother, the father, and the child from 31 October until 5 November, the first two days in the B Town home and the last four days in AA Town apartment. At the end of that time, the father returned to Dubai and the mother and child returned to the U Town property.

6. I do not accept that what occurred in the days between 26 October and 6 November could properly be described as the mother returning to take up residence with the father, such that one could be satisfied they were reconciling their broken relationship.

7. In his affidavit the father said that on or about 14 October (the day before the trial concluded) the mother called him and asked him if he could attend the child’s ballet class. He said in his affidavit that he attended the child’s class that day “unsupervised”. He said that after the class he, the mother and the child went for a walk to a nearby café. He said that they held hands and kissed and that the mother was warm and loving towards him.

8. Although the first part of paragraph 156 of the father’s affidavit makes it look as if he was saying he was in the company of the child at the ballet class without anyone else being around to supervise, I did not understand him at the trial to be maintaining that was the case. If he was, I reject that. The mother agreed that there was no professional supervisor present but asserted that she was present at all times then and that she did not leave the child with the father unsupervised at that time. I accept that to be the case.

9. The mother denied that she kissed the father with any intimacy. She said that he did “grab” her hand and held it, telling her he was sorry for hurting her. I accept her evidence about that. To the extent that his controverts that, I reject it.

10. The father said in his affidavit that on Wednesday 16 October, after his supervised time with the child that day, the mother contacted him and offered to bring the child to meet with him at the park and to spend some time with him. He said that they met and went for a drive together, then went for a walk on the beach and then had dinner together. He said that he proposed working on their relationship and that the mother’s response was “I can’t give you an answer right now. I want to work on it and I don’t want to give up on us, but I don’t know how to start to fix this.”

11. The mother did not deny any of that evidence in her reply. I accept it happened as the father said. That evidence supports a finding that the mother was open to working on a reconciliation but not a finding that they had, or were actually reconciling.

12. The father said in his affidavit that he spent time with the mother and the child at a park in B Town without anyone else being with them. He said that the mother hugged and kissed him and said she loved him. He said that the mother “continued to reassure [him] that she wanted to repair [their] relationship and reconcile with [him]”. He said that the mother said “I still love you and you mean everything to me. I’m just so confused and I don’t know what to do”.

13. The mother said in her reply that she might have told the father that she “loved” him. She said she did not mean that she loved him as a husband but rather “as the father” of their child. She said that she did not want to reconcile with him. I accept that may have been the case, but I am not satisfied that she made that absolutely clear to the father. I am satisfied that he was trying to persuade her to reconcile with him and that he was holding on to hope that would occur and that, if it did, the mother would return with the child to the UAE.

14. The father said that on or about 23 or 24 October, the mother and child came to stay with him at the B Town home. He said they stayed overnight with him. He said that early in the morning, after he woke, he was in the bathroom showering, when the mother came into the bathroom. He said they hugged, kissed and engaged in sexual acts including intercourse. He said that he took photographs and videos of them engaging in these acts on his camera and that the mother did not object to him doing so.

15. The mother said in reply that on or about 23 or 24 October, she and the father went for a walk in the B Town area without the child so that they could talk. She said that she wanted to “mend some of the hurt that had arisen because of the long court case”. She said that there was a Local Court hearing of an Apprehended Domestic Violence Order (“ADVO”) application pending the next day or so after that. She said that she and the husband were discussing compromising that on a “no admissions” basis and that the father had agreed with her to consent to the making of an order on a “no admissions” basis. She said that after the walk they returned to the B Town home and that is when she had a shower because she had been swimming whilst on their walk. She denied that she had slept at the home overnight with the father. She said that he came into the bathroom whilst she was in the shower and that he was holding his phone, saying that he wanted to take some pictures of her. She said that she relented and let him take some pictures. She said that he “grabbed [her] hand and pulled it down to hold his penis”. She said that he kept telling her what to do. She said that she knew he enjoyed pornography, but that it was not a mutually enjoyable experience. She denied that they had sexual intercourse.

16. The mother said that on 25 October she attended at the Local Court for the return of the ADVO hearing and she was shocked to see the father with his solicitor and a barrister as he had told her that he would be attending alone and would consent to the order being made on a “no admissions” basis. She said that she heard the father’s counsel tell the Court that the application should be dismissed because the parties had been “sleeping together” for the past four days. She said that was just not true. She said that despite the barrister’s submissions subsequently during the course of that hearing the father did consent to the ADVO being made on a “no admissions” basis.

17. The mother adduced into evidence the transcripts of digital text conversations the parties had later that day on 25 October via the web based “WhatsApp” application. It included the following:

    M. I told u that I found a solution to agree to sign that, u decided to trick me and pretend that u were going to and then fight and try and tell the judge that is been sleeping at your place for the last 4 days. (mistakes included as they appeared)

    F. I did not say u were sleeping in the house. I never told them u did. I only said u spent 4 days with me and [the child] around town. I didn’t use that and I didn’t prsue it. I didn’t show any pictures and I didn’t put u on the stand today to contradict the avo even though I could have. The prosecutor is a liar and he said things I can’t accept. I was trying to dismiss the case and if that didn’t happen I was going to consent which I did. Even though the judge was going to hear it some other day I decided not to go there as I told unit ends today. (mistakes included as they appeared)

18. Although the mother was cross-examined about a lot of the matters said to have happened over these days, she was not really challenged in cross-examination about her evidence about the circumstances in which the pictures and videos were taken of her and the father. I am satisfied that her evidence that they did not have sexual intercourse at any time over this period was truthful. I accept the mother’s evidence about that and reject the father’s evidence that they did. I accept the mother’s evidence that she had not slept at the father’s house that night as he said she did and that the pictures were taken when she was in the shower after their walk that day. I am satisfied that the pictures and videos taken by the father were taken and saved and stored by him as part of an evidence gathering exercise, particularly given the ADVO hearing was listed to be heard a few days after that day and he had Brisbane solicitor and counsel instructed to travel to B Town to represent him in defending that, something I am satisfied he had not told the mother at the time. I am satisfied that he must have given his solicitor and counsel instructions that he and the mother had been sleeping together and having sex. I do not accept the truth of that.

19. The father went on in his affidavit to say that he, the mother and child spent more time together on Saturday 26 October. The mother does not deny that. The “WhatsApp” transcripts showed the father informing the mother on 25 October that he was going to leave Australia that day and was never coming back and also the father asking the mother to “take care” of their child as if he would not be seeing her again. Although it is not explained how it happened, the father clearly changed his mind very quickly and stayed. The only other explanation is that he did not mean what he said when he said it. He was spending time with the mother and child again the very next day. Perhaps he was, like the mother, similarly emotionally conflicted by all the circumstances.

1. The father said that the mother and child spent the night with him at the B Town home again that night and that they stayed with him there until they went up to the AA Town apartment several days later. The mother did not accept that in her evidence. I am not satisfied that she and the child did stay with the father overnight that night. I generally prefer her evidence about the events of this time than the father’s evidence.

2. The father said that on Sunday morning 27 October, he, the mother and the child went to breakfast together at a café in B Town. He said that he then dropped the mother at the gym and “spent time alone with [the child]”. He said he then took the child to a car wash on his own, took her to a park and pushed her on the swings, bought her a drink and went for a walk with her, all without anyone else being with them.

3. The mother said that on that Sunday morning, she and the child met up with the father and went for breakfast together at the café. She said that they later went to the gym together but that because the children’s crèche at the gym was closed and they could not have the child cared for, they did not stay for a workout. She said that they then drove together to the carwash and that she got out of the car and put the money into the machine to start the carwash whilst the father and the child stayed in the car whilst the car wash went through its operation. She said she was standing on the outside watching them in the car and waiting for the car to pass through. The mother adduced into evidence a letter from the gym supporting her assertion that the gym’s records did not show her as having gone to the gym that day. The father adduced into evidence in support of his version of events a video of him and the child inside the car in the car wash without the mother in the car.

4. The video of the father and the child inside the car whilst it was being washed does not persuade me that the father’s version is correct. What is in the video is equally consistent with the mother’s version of events. I did not consider the mother’s credibility to be damaged in respect of her narrative of the events of that morning. The letter from the gym adduced by the mother was not seriously challenged, though I do not attribute much weight to it in the circumstances. However, I accept her evidence and reject the father’s evidence. I am not persuaded that the mother left the child in the father’s sole care on that morning. The “WhatsApp” transcripts certainly show the mother and the child and the father were not together for several hours that same afternoon, at least. I am satisfied that the father is falsely asserting that the mother willingly left the child in his sole, unsupervised care whilst she went off to the gym in an effort to improve his case in respect of risk and to damage the mother’s case that her fear of his flight risk is genuine. 

5. The father went on to assert that on Monday 28 October he, the mother and the child again had breakfast together after having spent the night together at the B Town home. He said that the mother and the child stayed overnight with him again that Monday night. The mother agreed that they had breakfast together that Monday morning but again denied that she had stayed with him overnight that night or on any of the nights of 26 – 28 October. She said she only stayed overnight with him on the nights that the woman from Sydney stayed with them, which was a few days later. I accept the mother’s evidence about that and reject the father’s evidence that she did.

6. The mother’s evidence is that the father arranged for the woman, who I accept was a friend of a member or members of the mother’s extended family, to come up from Sydney to provide them with some “counselling”. The mother asserts that it was to be counselling to assist them in their co-parenting relationship, not to help them reconcile. I am satisfied that the father was certainly trying to achieve a reconciliation, so that the mother would agree to return, with the child, to live in the UAE with him. I am just as satisfied that the mother certainly had no intention at that stage of returning to the UAE with the child to live with the father again. I am also satisfied that the mother was indeed struggling with her emotions and feelings towards the father and the future of their relationship at that time and was hoping that some counselling and time together might help clarify things for her around that.

7. The father said in his evidence that the woman from Sydney arrived in B Town in or around 30 October. I am satisfied that is when the mother and the child began sleeping in the same home as the father. The counsellor was also sleeping in the same home. On or about 1 November, they all travelled to AA Town to stay in the apartment situated there.

8. The father said in his evidence that he and the child went to the coffee shop in the apartment building on the morning of 2 November where he bought the child a coffee and a biscuit. He said “[n]o-one else attended with us”. By the written submissions of Queen’s Counsel for the father, I understand that evidence to be relied upon as evidence that the mother permitted the father to take the child that morning to the coffee shop without her accompanying them. The father adduced some photos into evidence that he said were taken on 1 and 2 November.

9. The mother did not reply directly to the father’s evidence about that in her reply affidavit, though she maintained that she had never let the father take the child anywhere with him on his own during this time at the AA Town apartment. None of the photos the father adduced proved to me, persuasively, that the father was truthfully reporting that and the mother not. The mother was adamant under cross-examination that she did not allow the child to go anywhere alone with the father. I was not conclusively persuaded that she was wrong about that or not telling the truth as she recalled it.

10. The father went on in his affidavit to say that on 3 November, after he and the child woke up, he and the child “decided” to go out for breakfast. He said that the mother was still in bed when he said to her “[the child] and I are going out for breakfast. Would you like to come with us?” He said the mother responded with words “to the effect” of “no thanks, you two go ahead, I think I’m going to sleep a little longer. I am not feeling well.” He said that he and the child then went out for breakfast alone. The father said that he filmed a video of the child and him at the café that morning. A short video was adduced into evidence. It certainly shows the child sitting in a café or coffee shop or a breakfast lounge eating. Whilst the father is not in the video, he can clearly be heard talking to the child from behind the camera and she responds to his questions. The mother is not to be seen in the video. Her voice is not heard in the video either. It is supportive of the father’s evidence about the matter, though, in my judgment, not conclusive proof that the father’s assertion has to be true.

11. In her reply affidavit, the mother said of this particular assertion of the father:

    I do recall [the father and the child] waking up earlier than me and I found them watching TV and they said they had had breakfast but there was no mention of it being outside of the apartment without (the woman from Sydney) or myself.

    I did not give [the father] permission to take [the child] alone to breakfast. I deny I said the words attributed to me in paragraph [174], to the effect that [the father and the child] should go to the café alone, or that I wanted to stay in bed.

12. I consider it worth observing that the mother was cross-examined meticulously about this evidence and the events of that morning. The mother said that she did not remember or recall the conversation the father asserted he had with her when she was in bed. She was asked a couple of times about it. She said she did not recall the conversation. I do not accept this means that the father’s evidence of it must be accepted. The mother denied, specifically, that she had given the father permission or approval to take the child out for breakfast or that she had expressed an intention to sleep a little longer. She denied that she had said this or that she had gone back to sleep. She denies that the father had taken the child out for breakfast without her. In her oral evidence, she said that when she got up the father and the child were “sitting there having breakfast in the apartment”. When it was pointed out to her that she had said in her affidavit that when she went out of the bedroom and saw the father and the child watching the TV that the father had told her that they “had had breakfast” she then said “well, they had had breakfast”. She said that she thought it had all happened within a very short time frame from when the child woke her up and she got up. She said she believes that the father and the child were in the apartment for the entire time and had not gone out for breakfast.

13. In his written submissions, Queen’s Counsel for the father submitted that the mother had changed her version several times. I respectfully do not accept that. I do accept that she had said in her affidavit that the father and child had woken earlier than her and that when she got up she found them watching TV and they said that they had had breakfast. It is correct, I accept, that she did say something in her oral evidence that was different to that when she said that when she got up the father and the child were “sitting there having breakfast in the apartment”. I accept that when the inconsistency was pointed out to her by Queen’s Counsel, she accepted she had said in her affidavit that they “had had breakfast” when she got out of bed and joined them watching TV and she maintained that was the correct version of events.

14. However, I respectfully do not accept the submission that the mother was lying or that I “could have no comfort in the reliability of the Mother’s evidence.” I am satisfied that the mother was aware that on that morning, 3 November, the child and the father had woken and got out of bed before her and that when she got up and joined them in the lounge room watching TV that she was told that they had had breakfast already. I accept her evidence that she had no recollection or memory of having given the father her permission or blessing to take the child out for breakfast without her. I accept her evidence that she was not told that they had actually gone out of the apartment for breakfast and that she still believes that they had not gone out at all without her that morning.

15. I do accept, however, that as a matter of fact the father could well have taken the child to the café or breakfast lounge for breakfast that morning and returned to the apartment with the child before the mother rose from bed. However, I do not accept that if that happened that it means the mother is necessarily lying in her evidence. Further, I do not accept that it proves she permitted him to have time alone with the child or even that she was actually content for him to have time alone with the child. Even if I am wrong in respect of my findings about this issue, I am not satisfied at all that the evidence proves that the mother was not genuine in her belief, reported in the lead up to the trial before me and expressed in her evidence adduced for and at the trial, that the child faces a real risk of being removed from Australia and taken to the UAE if her time with the father is not supervised at all times. I respectfully reject the submission to the contrary.

16. I am quite satisfied that the father was making every effort he could in those days that the mother and child were spending time in his company in late October and early November 2013 to have the mother reconcile with him with a view to having her commit to returning with the child to live in the UAE. The evidence supports a finding that though he returned alone to Dubai on 6 November 2013, (before Kent J’s final orders were made) he continued to actively encourage the mother to make a decision to reconcile with him, or to inform him conclusively of her determination not to reconcile with him, for some time thereafter. I am satisfied that when he finally accepted that the mother would not be returning with the child to the UAE and not reconciling with him, his attitude towards her immediately seriously hardened. As I have already observed, the father soon took another wife, before he had even obtained a divorce from the mother, as the laws of the UAE permitted him to do. He filed his appeal against Kent J’s orders, seeking and eventually obtaining leave to appeal against those orders, though he had filed out of time. He made his position that he did not accept an outcome where the child remained in Australia, even if the mother did, entirely clear to the mother from that time on.

17. Even if I am wrong and contrary to my findings it was the case that the mother did not totally prevent the child from being alone in the father’s care during that short period at the end of October and beginning of November in 2013, I am simply not satisfied that supports findings that she does not now genuinely believe that the father would, if he has an opportunity, take steps to try to get the child out of the country and back to the UAE without the mother’s knowledge or consent. Much has happened in the time since then that I accept could have impacted on the mother’s views about the issue. In particular, I mention the notation in the Dubai Court arbitrators’ report of the father’s statement about wanting to get the child back to the UAE. I will say more of that further on.

What then is my assessment of the actual risk of the Father removing the Child?

108.Some of the things that Queen’s Counsel for the father submitted that the Court would consider in assessing this risk and determining whether continued supervision of the child’s time with the father is in her best interests were:

(1) The father has not engaged in any form of self-help on any of the occasions that he has had time with the child in Australia since the 2013 Orders were made;

(2) The father has complied with the Court Orders to date and is a law abiding person, not having broken the law anywhere;

(3) The father did not attempt to take any advantage of the mother when she provided him with time unsupervised by third parties and time alone with the child in that October/November period;

(4) That whilst the father has sought, consistent with the marriage contract, to divorce in Dubai, he has not sought any orders in relation to the child in that country;

(5) That the father acknowledges that removing the child from Australia and taking her to Dubai would cause “great disruption” and “great resentment” and such acknowledgement is one of the reasons he would not do this to the little girl he loves.

1. In contrast, in the mother’s trial affidavit, she set out matters that she said support her contention that the risk of the father taking the child from Australia if he is given unsupervised time with her is of an unacceptable level. These matters included:

   1.That the father had, prior to the 2013 trial, threatened to remove the child, invoke Sharia law and ban the mother from the UAE;

   2.That the father instituted divorce proceedings in Dubai in 2014 without reference (I understand that to mean ‘without notice’) to the mother and “substantially misrepresented the facts to the Dubai Court”. She said that in those proceedings the father had stated that he intended to obtain orders for custody and guardianship of the child in the UAE, that he intended to bring the child back to the UAE to raise her and “save her from what she might face”, and that he had told the UAE Court that the mother had “kidnapped” the child from Dubai;

   3.That the father has threatened to “destroy” the mother financially and emotionally and “appears to be carrying through with those threats”;

   4.That the father is a person of substantial wealth and influence and, in particular:

   ·Has the financial means to access an airplane or seaworthy vessel anytime he wishes;

   ·Can obtain a passport for the child without the mother’s knowledge or consent;

   ·Has obtained multiple passports for the child in the past under different names;

   ·Has obtained a letter from the Ministry of Immigration in the UAE with translation overnight when he wished to clarify something raised by the mother without one of the child’s passports in a previous hearing;

   5.That the father has enticed the child by inviting her to Dubai with offers of things such as her bedroom and other material things as well as contact with her paternal relatives.

2. I am certainly satisfied that the father has the financial means to access an airplane or a seaworthy vessel which he could use to remove the child from the Australian jurisdiction so as to get her to another country where she could more readily be removed to the UAE. As I have already observed, a shortage of money does not appear to be a problem the father experiences.

3. I am also satisfied that the father has obtained, in the past, a number of passports from the Government of the UAE for the child, without the mother’s knowledge or consent, with the child’s name appearing in various different forms in the various passports. I am satisfied that the father is a man of wealth,  connection and influence, even within Government, in the UAE.

4. The evidence satisfies me that the father had certainly threatened to remove the child from Australia before the 2013 trial, and to rely upon the laws of the UAE to obtain and retain ‘custody’ of her and to ban the mother from the UAE. I am also satisfied that the father’s preference is clearly for the child to live with him in the UAE as opposed to living here in Australia with the mother. All of the evidence in the case persuades me that the father’s asserted acknowledgment that taking the child back to Dubai would cause “great disruption” and “great resentment” would not, in itself, sufficiently motivate him not to attempt to bring about such an outcome.  Such asserted acknowledgement did not stop him from telling the child that she could just get on a plane and fly to Dubai when he was talking to her or from talking to her about the pony he was getting for her in Dubai, or had already obtained for her there.

5. I am entirely satisfied that the father does not have the necessary respect for the mother’s feelings, or her emotional and financial wellbeing, such that would stop him from acting to get the child out of Australia and back to the UAE if he possibly could.

The Father’s proceedings for divorce and property orders in Dubai

1. I am satisfied the evidence supports findings, which I make, that the father commenced proceedings in a Court in Dubai in 2014 seeking divorce and property orders from that Court against the mother and that he did not give her immediate and proper notice of the proceedings when he easily could have done so. Further, I do not consider it likely to be a mere coincidence that he commenced those proceedings on the anniversary of their marriage, the 7^th of July.

2. The evidence satisfies me that the Dubai Court proceedings commenced by the father were returnable on a date in September 2014. The father was represented by a local Emirates lawyer. The Dubai Court’s records confirm that there was no appearance for or by the mother and that notice or service had not been effected upon her at that time. The record reflects that the father’s lawyer ‘submitted proof” that the mother was “outside the country” and that he requested that the mother be notified “by publication in a foreign newspaper”. The matter was adjourned to 14 October 2014 with Court records reflecting the assertion that the mother’s address of residence was unknown. However, the mother’s whereabouts were known to the father and, as I have already observed all of the documents in those Dubai proceedings could very easily have been served on her in Australia.

1. The Dubai Court’s records (in evidence before me) include a copy of a page of classified advertisements, that appear to come from a Dubai English language newspaper called “J Paper”, that includes notice of the proceedings to the mother. The date of the classified advertisements is 1 October 2014. On 14 October, the father’s lawyer showed the Dubai Court the newspaper advertisement and is recorded as making a “re-notification request”. The matter was then set for a hearing on 30 October 2014 with the ‘re-notification’ of the mother to be done in the same manner as it already had been. Again a classified advertisement was placed in what I am satisfied was an English language Dubai newspaper, as well as one in a local Arabic language newspaper.

2. The mother filed an application for divorce in Australia on 2 September 2014. I accept that at that time she was completely unaware of the husband’s Dubai proceedings. The father’s Australian solicitors refused to accept service of her application on 19 September 2014 and 15 October 2014. Presumably, they held instructions from the father to so refuse. However, I have no doubt that by these requests from the mother to the father’s Australian solicitors for them to obtain instructions to accept service and their advising that they had not received instructions to accept service of them that the father became aware that the mother had filed the application.

3. The mother said she was first informed of the Dubai Court proceedings on 28 October 2014. I accept that. No evidence whatsoever was advanced by the father in these parenting proceedings before me to explain why the mother had not been given proper notice earlier than that, when I am satisfied that clearly she could have been. It is, I consider, likely that she was given notice at this time because of the fact that the father was aware that she had commenced divorce proceedings in Australia. The mother’s evidence, which I accept, is that when she was given notice by email of the father’s Dubai Court proceedings on 28 October 2014 she received some documents but that they were limited and did not include any notice to her that the father had applied for a fault based divorce as opposed to an ordinary divorce. The mother asserts a “fault based divorce” is “a particular kind of divorce that allowed [the father] to seek an order that would “extinguish” [the mother’s] rights and his financial obligations to [her] under Dubai law.” The father offered no evidence in the proceedings before me to refute these assertions. Accordingly, I accept the mother was initially given very limited information by the father about the full extent of the Dubai Court proceedings. I accept the evidence that she only became aware of the full extent of the documentation and the process that had taken place in the Dubai proceedings when she was able to have Dubai lawyers obtain access to the Court file in or around June 2015.

4. On 30 October 2014, the matter was before the Dubai Court again and the father’s lawyer provided proof of newspaper notification again. Although, as I have observed, the mother concedes she received notice of the Dubai proceedings on 28 October by email, the records of the Dubai Court that are in evidence do not disclose any record of notice of the proceedings having been brought to the mother’s attention on 28 October. On 30 October, the Dubai Court determined to require both parties to nominate arbitrators to represent them. The Court must have accepted the mother had been given notice. The task of the “arbitrators” is recorded as being to “reconcile the two parties or divorce them”. In default, the arbitrators were to be appointed from an “arbitrators’ list” and the arbitrators were to “submit their report within a month and a half from the start of their mission”. 

5. Notification of that order had to be published in newspapers in English and Arabic. The Dubai Court’s records reflect that it was so published and that the matter was back before the Court on 16 December 2014. On that day, the Court ordered the case referred to two arbitrators as per its 30 October ruling and the Arbitrators were to report to the Court on 29 January 2015.

6. The arbitrators produced a report dated 25 January 2015. Relevantly, in relation to the mother’s concerns about the father’s position in respect of the child it includes the following exchange between the arbitrators and the father:

   Arbitrators     What do you request?

   Father Nothing…. I want to take my daughter back in order to raise her and save her from what she might face.

   The arbitrators produced a second part of their report dated 26 January 2015. They said that they had communicated with the mother through phone and email at her request after they had requested to meet with her outside the country. The mother said that a man had contacted her telling her he was from the Dubai Court and asking her if she would meet with him in London. She asserted that he refused to provide any identification or authorisation verifying he was who he said he was. She was worried about him and did not agree to meet him in London. The arbitrators state in their report that the mother then did not respond at all to their request for her to respond to their correspondence. 

7. I am satisfied that the father was aware that the mother was prosecuting her application for divorce and property settlement orders in this Court and that a hearing was pending in this Court on 3 February 2015. The father had Mr Richardson SC instructed to appear in Brisbane on 3 February 2015 on his behalf. Relevantly, knowing that, on 29 January 2015, the father applied to the Dubai Court for the hearing of his divorce application in Dubai to be expedited. Under cross-examination from Mr Lloyd SC at the trial before me he denied that he did that knowing that the mother’s application was before this Court in early February, trying to have it finalised before the mother’s application was heard. He asserted that he applied for expedition simply because he wanted to have the divorce from the mother finalised as quickly as possible. No notice was given to the mother of the fact that he was asking for an order expediting the hearing of the divorce application. Indeed, the mother said she only become aware of that when she saw documents from the Dubai Court file in June 2015. Those documents included his request for expedition filed in Dubai on 29 January 2015. I reject the father’s evidence about that. Specifically, I reject his denial that his application for expedition, made without notice to the mother, was made to try to thwart the mother’s application for property adjustment orders in this Court. I am satisfied that is exactly what he was trying to do when he filed his request for expedition.

8. My satisfaction with that is fortified by the following. In that request for expedition the father asserted some things that were clearly not true. He had asserted that the mother had filed her application for divorce in Australia only on 16 January 2015 “in order to avoid the divorce under the Islamic Law for personal ambitions”. That assertion was not true. He also asserted, effectively, that he did not and was not seeking “custody” of the child but rather was “abiding by the Islamic law that states that the girl remains in custody of her mother until she reaches puberty.” Whilst he had not sought “custody” of the child in the Dubai divorce proceedings that he had filed, he clearly had in the proceedings that had been heard in this Court. He said nothing of that. His Dubai lawyer had also told the mother in email correspondence sent to her in late 2014 that “custody will be decided later”. Clearly, the father was reserving his position in respect of “custody” of the child in the Dubai proceedings. Clearly, he had made his position about his daughter clear to the arbitrators.

9. The mother also deposed to the fact that the father had included incorrect information in the initial application he filed in the Dubai Court in mid-2014. She pointed out that he had misstated her Australian address and that he well knew her correct address. She said that the telephone number and address given for the mother in Dubai (where he knew she no longer lived in any event) were also incorrect and that the telephone number had never been her number. She said that the assertion that marriage documents had been translated from Arabic to English on the day of their marriage was also false as that had not happened. She said she had given evidence as to that fact in the trial before Kent J. These were only some of the matters she referred to as being incorrect. The father gave no evidence before me refuting any of those assertions or seeking to explain why incorrect information had been included in his divorce application. I accept the mother’s evidence about it. That the father caused or allowed documents to be filed in the Dubai Court in support of his divorce application that included incorrect information, particularly in his request for expedition, in my judgment, does him little credit at all.

10. The mother’s application for divorce and her application for property adjustment orders did not get heard and determined in February 2015. The mother asserts the father deliberately delayed her proceedings to allow his Dubai proceedings to be finalised before hers. I have little doubt that is correct.

11. On 25 February 2015, the mother obtained an interim injunction from Johnston J of this Court’s Sydney Registry directed at the father for him to “do all things and give all instructions necessary to requesand prevent the Dubai Court from delivering any findings or judgment in the proceedings …/2014 commenced on 15 July 2014” until 4.00 pm on 2 March 2015, when it seems her application for divorce was listed for hearing in this Court. 

12. Despite that Order being made in proceedings in this Court in which Mr Kirk QC appeared for the father, judgment in the father’s Dubai divorce proceedings was pronounced in Dubai on … February 2015. That judgment purported to finalise property matters between the father and the mother as well, ordering the mother to pay the father 100,000 UAE Dirhams and the Court’s costs.

13. The father’s evidence about the events surrounding this was troubling. On Wednesday, 1 August 2017, under cross-examination before me, the father conceded that he had received a telephone call sometime after the Order had been made by Johnston J on 25 February 2015, telling him about the Order that had been made. The father appeared to agree that he was in Dubai at that time.

14. Mr Lloyd SC suggested to the father that no one appeared in the Dubai Court to request that judgment not be delivered in the father’s divorce and property proceedings there. The father said that was not right. He said that his lawyer went to the Court but was not allowed to go in to the Court. Significantly, the English translation of the Arabic judgment of the Court refers to “the public hearing held on … February 2015” as well as stating “the Court has ruled as in the presence of the defendants/litigants”. The defendant was said to be the mother. Under cross examination about that the father said there “is no court room”. He said further when asked about the Judges’ ruling that day, “I can’t answer”. I simply did not understand what he was meaning to convey by those answers.

15. The father denied Mr Lloyd’s assertion that the judgment of the Dubai Court was made at a time when the father himself was aware of this Court’s injunction requiring him to request the Dubai Court not to deliver judgment. In light of the evidence he had given about being told about Johnston J’s evidence on 25 February 2015, I simply did not understand the father’s denial of that proposition. The two answers were just not consistent. There was no attempt to explain that inconsistency at the time during the cross-examination or in his re-examination afterwards.

16. The father then agreed with Mr Lloyd that it was his [the father’s] view that the orders made in the Dubai Court expunged the mother’s right to have orders made anywhere adjusting property as between them. He apparently has maintained that position since.

17. Then on the next day of the trial before me, Thursday morning 2 August 2017, when cross-examination of the father continued on this same subject, the father said he thought he had received an email from his attorney about the Australian Order, not a phone call. He then said that he could not recollect whether he was in Dubai or another country at that time. He was shown a copy of the order of Johnston J of 25 February 2015 and confirmed he had received a copy of it on 25 February 2015 and that he had forwarded a copy of it to his Dubai lawyer. He confirmed that he had told his lawyers that the order obliged him to try to stop the proceedings in Dubai and he gave evidence that he had told his lawyers to take steps to stop the Dubai proceedings so as not to jeopardise his case in Australia.

18. His lawyer called him, he said, and told him it could not be done as it was set for judgment and that an application to stop it would have to be filed online and would take two days to process. He said that someone from his lawyers’ office did go to the Court in Dubai on … February 2015 and could not achieve what was supposed to be done. He said that he was not aware of the technicalities of how that happened. He said he did not know what happened when his lawyers went to Court.

19. An affidavit of the father, filed in this Court on 5 March 2015 was tendered into evidence on the morning of the third day of the trial before me, after the father had given his answers to Mr Lloyd’s further questions about the events of late February 2015.  In that affidavit, the father deposes to having been informed by his Australian lawyers that they emailed a copy of Johnston J’s Orders to his Dubai lawyers and that those lawyers received them at 10:43 am UAE time on 25 February 2015. In that affidavit, he said he was in City XX at that time. He went on to depose to conversations with his lawyers and also with one of the arbitrators in his case, who the father said contacted him at 9:20 pm UAE time on 25 February 2015 and with whom he then had a telephone conversation that same night. The father deposed to being informed by his lawyers and the arbitrator that there was nothing that could be done to stop the judgment being delivered on … February 2015. He deposed to having received a copy of the Dubai Court’s Orders on the afternoon of … February 2015. 

20. The mother obtained another Order from Justice Hogan of this Court on 2 March 2015 obliging the father to provide all the documents from the Dubai Court proceedings Case No. …/2014 and No …/2013. He provided some of those documents. He said he provided all of them. The mother said that he did not and that she had to obtain the balance of the documents by having lawyers in Dubai go to the Court and obtain them from the file. She said that was in June 2015 and that was the first time she saw the full extent of the proceedings in Dubai. I accept the mother’s evidence about that.  

21. The evidence about all these matters pertaining to the Dubai Court proceedings, particularly the father’s oral evidence at the trial before me and the way in which it was given, satisfied me that the father is not a man whose evidence can be relied upon as entirely honest and reliably truthful.

22. There was another matter about which the evidence satisfied me of this same point. The mother had given evidence in her trial affidavit that the father had repeatedly told the child in conversations had with her that the mother was a liar. The father had denied that in his reply affidavit, asserting that he had not ever said that.

23. Subsequently, the mother produced recordings and transcripts of conversations evidencing that the father had indeed told the child that the mother was a liar. Presented with that irrefutable evidence, the father conceded he had told the child that and explained his denial by a simple assertion that he was mistaken. I am satisfied that his denial was not a product of mistake but rather was a deliberate falsehood, later proven to be so.

24. In the witness box, the father conceded, after some reflective thought, that he had indeed promised the mother that he “would make [her] pay” for what she has done. I got no sense that he did not still harbour the same feelings towards the mother or that he was remorseful for having said that. I am satisfied that he is intent on “mak[ing] [her] pay”.

25. I do accept that the evidence does not support a finding that the father has engaged in any form of self-help in so far as having taken any steps to try to  remove the child from Australia on any of the occasions that he spent time with her in the past. I also accept that at least in respect to the parenting orders it is not contended that he has held over the child or done anything that could be described as not complying with Court orders.

26. Nevertheless, after considering all of the evidence, I have reached the conclusion that there is indeed a real risk that the father would, if he has unsupervised time with the child anywhere within Australia, remove or attempt to remove the child from the country without the mother’s knowledge and consent and that, in all the circumstances, the level of risk is high and completely unacceptable in terms of the child’s best interests. It is, I consider, unacceptable because of the consequences to the emotional wellbeing of the child if she was removed from Australia and returned to Dubai. I am satisfied that the mother will not return to the UAE whether the child is living there or not. The UAE is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. I am satisfied that a removal of the child to the UAE would, therefore, deprive the child of an ongoing relationship with her mother. On the other hand, a continuation of the child living here in Australia with her mother continues the primacy of the maternal parenting arrangement to this point in her life, maintains the strong maternal-child attachment that exists, but at the same time permits of her having a continued relationship with her father (should he continue to travel regularly and consistently to Australia) that I am satisfied permits of the maintenance of meaning and value for her, though constrained by the need for supervision.

27. I am satisfied, in the circumstances that it is in the child’s best interests for the time she spends in her father’s care in Australia to continue to be strictly supervised. I am also quite satisfied that the unacceptability of the risk of the child being removed from Australia to the UAE, currently assessed, cannot be considered to abate before her 18^th birthday. Growth in age and relative maturity from the stage in life the child is at now to that of a young adolescent woman still short of majority, does not, in my judgment, significantly reduce the risk of her father being able to get her out of the country without her mother’s knowledge and consent. I am, accordingly, satisfied that the final orders I make must, in the child’s best interests, include the requirement for supervision until her 18^th birthday. The Orders I intend to make will include that requirement.

The Actual Orders I will make

1. Both of the parties seek Orders that permit the child to spend time with the father as agreed between them in writing. I will make such an order.

2. They each seek particular orders in the event of failure to agree, but they still agree that the father shall provide the mother with not less than fourteen days written notice of his intention to travel to Australia to spend time with the child. I will include that in the orders I make.

3. I consider it proper in the circumstances for the father’s written notice to the mother to include details as to the period of time that it is proposed that the child shall spend with the father and the child’s contact details whilst spending time with the father. I also consider it appropriate that the father’s Australian lawyers confirm in writing to the mother’s nominated Australian lawyers that that they are then holding the father’s current valid passport pursuant to an irrevocable authority from the father to retain the passport until a specified date to be provided in that written confirmation.

1. I also consider it appropriate, given my satisfaction as to the need for supervision, for the orders to make the child’s time with the father conditional on the commercial provider of supervision that has been providing it over the years since Kent J’s Orders, LC Services, to continue to provide it. I will also order that the supervision may be provided by such other commercial provider of supervision services as the parties may agree upon. The Orders will be conditional upon the provider of supervision confirming in writing to the mother’s nominated Australian lawyers the following:

   (i) their availability and retainer by the father to supervise time as provided for in the Orders; and

   (ii) their confirmation that it is a term of their retainer to forthwith notify the mother and her lawyers by telephone, text message or other speedy means of any breach by the father of the Orders.

2. The Orders I intend to make will provide for the child to spend time with the father as follows:

   (i)for a period of twelve months, for three lots of sixteen day blocks, four days with the father and two days with the mother alternating for the entire sixteen day period;

   (ii)at the conclusion of that twelve months, for three lots of nineteen day blocks for another period of twelve months, five days with the father and two days with the mother alternating for the entirely of the nineteen day period;

   (c)at the conclusion of that second twelve month period just referred to, for three lots of twenty-two day blocks for another period of twelve months, six days with the father and two days with the mother alternating for the entirety of the twenty-two day period;

   (d)at the conclusion of that third twelve month period just referred to, for three lots of fourteen day blocks, spending the whole of the fourteen days of each block with the father, in each year thereafter. 

3. I will restrict the places the child is to spend time with the father to such places as agreed between the parties in writing from time to time and, failing agreement, to places that lie within a radius of 125 kms of the township of B Town, New South Wales. That will allow the father to spend time with the child during the visits to Australia as far north of B Town as BB Town at the far northern end of AA Town and as far south as CC Town, as well as at many inland locations to the west of B Town. That variety of destinations at which they can stay during holidays, if the father chooses to come to Australia during the child’s school holidays provides, in my judgment, ample opportunity for the father, any member of his family who he brings with him, and the child to spend some wonderful time together, even with a supervisor present. I reject the submissions that the father should be able to take the child anywhere within the entire country of Australia. I consider such a right to travel anywhere in the country with the child would raise the level of risk of him removing her from the country, even with supervision, to an unacceptable level. 

4. The time I will make provision for in the orders I intend to make is more than was supported by the mother and less than was sought by the father having regard to the fact that the father sought unsupervised time with the child. I am of the view that the child, at her current age, with the level of attachment to the father that she demonstrably has, will enjoy spending this level of time with the father and will get much out of it, even with supervision. As she gets older, she will be better able to cope with more days away from her mother. I will though make transition to increased days after the twelve month periods I intend to build the time around, conditional upon the father having come out and spent time with the child in the previous twelve month period as provided for. The time will not progress to the next increased block size until all of the previous three blocks of time have actually occurred. In this way, I am satisfied that the father will have more incentive to actually come out to Australia and spend time with the child, so as to ensure that the time he gets to spend with her continues to increase.

5. Satisfied that it is not in the child’s best interests to miss any school during periods when the father is in Australia and she is spending time with him, I will include provision in the Orders ensuring that she does not. Of course, if he chooses to visit Australia during the girl’s school holidays this will not apply.

Kent J’s Watch List Orders

1. In paragraphs 16 to 20 of his Orders, Kent J imposed restraint on the father from removing the child from the Commonwealth Australia. Paragraph 18 of his Honour’s Orders included a request for the child’s name to be placed on the All Ports Watch Alert System at all international departure points in Australia and for her name to be maintained on that system for a period of three years. That three years has now expired. My understanding of that system is that the expiration of that time would have seen her name automatically removed from that system. The rehearing ordered by the Full Court was limited as I have already described. Accordingly, I do not consider that I can make any change to the Orders of Kent J that do not fall within the Full Court’s remit, though it appears to me, given the Orders I intend to now make, that the child’s name should be put back on the Watch List and maintained on that list for several years to come, if not until her 18^th birthday. However, I will leave that to the parties to determine how they best proceed in respect of that matter.

Costs Application that was reserved to the Trial

1. An application for costs was pressed by the mother at the conclusion of the trial. She sought an order that the husband pay her costs of and incidental to an application she had made just prior to the trial for one of her witnesses to give evidence at the trial by video link from Victoria. The application was opposed by the father.

2. I am satisfied that there are circumstances that justify the Court making a costs order in favour of the mother and that a just order is for the father to pay the mother’s costs of and incidental to that application within fourteen days of making the order fixed in the sum of $1,967.05.

3. On 29 June 2017, the mother’s lawyers wrote to the father’s Australian lawyers consenting to a request they had made for one of the father’s witnesses to give his evidence at the trial by electronic communication and asking for the father to consent to one of the mother’s witnesses to also be able to give her evidence at the trial by electronic communication. The mother’s witness was a professional NAATI accredited translator of Arabic documents into English. She had provided an affidavit attaching translated documents.

4. The father’s lawyers had not responded to the request by 6 July 2017, so a further letter was sent to them seeking their urgent response. They responded on 7 July 2017 informing the mother’s lawyers that their client’s witness who was going to be attending electronically was no longer going to be attending electronically, their client did not consent to the mother’s professional translator appearing electronically and required her to attend in person at the trial.

5. The mother’s lawyers then prepared and filed an application on 19 July 2017 seeking an order from the Court permitting the professional translator to give evidence via video link from Melbourne, along with a short supporting affidavit. That application and affidavit was brought to my attention for consideration for listing and I listed it for hearing by me on 27 July 2017.  The application and supporting affidavit were then served on the father’s lawyers and they then immediately informed the mother’s lawyers that their client did now consent to the professional translator giving evidence by electronic communication. It took a little longer for them to agree that an order would be consented to that included a reservation of the mother’s costs of the application to the trial before me.

6. At the end of the trial, Senior Counsel for the mother pressed the application. The Court was told the mother’s actual costs of and incidental to the application were estimated to be around $2,500. Though Mr Kirk QC for the father opposed a costs order being made against his client, his strongest submission against an order was that he considered $2,500 was too much having regard to what was done. He made no serious attempt to submit that his client’s initial position, forcing the mother to make the application, was justifiable. I ordered the mother’s lawyers to file an affidavit setting out the costs sought to be ordered by the mother in the form of a schedule of her actual costs and the costs of the work done for her in that respect calculated according to scale.

7. An affidavit was filed for the mother on 11 August 2017 in which the costs on a solicitor/client basis, including for preparing that affidavit, were calculated at $3,532.04 and as per the scale at $1,967.05. I will order that the father pay the mother’s costs of and incidental to that application fixed in the sum of $1,967.05 and that it be paid within fourteen days. I consider it was completely unreasonable of the father to oppose the mother’s request for her professional translator to give her evidence by video link and then, when faced with her application already listed for hearing, to change his position and indicate his willingness to consent to the order. I consider an order justified and an order that he pay $1,967.05 within fourteen days to be just.

8. I will make the orders set out in writing at the commencement of these reasons.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 October 2018.

Associate: 

Date: 18 October 2018