Clayton and Bant (No 2) - [2013] FamCA 898

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT (NO. 2)

[2013] FamCA 898

FAMILY LAW – CHILDREN – With whom a child lives – Where the Mother is an Australian citizen and the Father is a United Arab Emirates national – Where the parties were residing in the United Arab Emirates but travelled to Australia on a regular basis – Where the parties travelled to Australia with the child in June 2013 and were to return to the United Arab Emirates on 2 September 2013 – Where the Mother filed an application for parenting orders under Part VII of the Family Law Act 1975 (Cth) – Where the Father is seeking orders for the child return to Dubai and live with the Mother and spend time with the Father or, if the Mother chose not to return to Dubai, for the child to live with the Father – Where the Mother cannot and will not return to Dubai – Where the Mother is seeking that the child live with the Mother in Australia – Where the Mother is the child’s primary carer and primary attachment figure.

FAMILY LAW – CHILDREN – With whom a child spends time – Where the respective versions of the parties are so divergent on fundamental issues of fact of central importance to the findings to be made in determining the child’s best interests such that the credibility of each party falls to be considered – Where the Mother’s evidence is found to be reliable and preferred to that of the Father – Where there is a risk that if the child was removed from Australia to Dubai the Father, if determined to prevent the Mother from being involved with the child’s life, could invoke the United Arab Emirates law to do so such as by preventing the child from leaving Dubai and “banning” the Mother from entering Dubai – Whether there is an unacceptable risk that if the Father spent unsupervised time with the child he would remove the child from Australia to Dubai – Where the risks identified in the Mother’s case cannot be eliminated by the making of an “agreement” registered with a court in Dubai or given effect to by an order of a Dubai court – Where there is a need to protect the child from the psychological harm that would occur if the child were either permanently removed from the Mother or there was a significant interruption of her time with the Mother – Balance between guarding against the “flight risk” and maximising the Father’s time with the child consistent with her best interests overall.

Cox & Pedrana (2013) FLC 93-537
Donaghey & Donaghey [2011] FamCA 13
Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461
Sayer & Radcliffeand Anor (2013) 48 Fam LR 298

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Personal Status Law 2005 (UAE)
Hague Convention on the Civil Aspects of International Child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clayton and Bant (No 2)

Details

AGLC: Clayton and Bant (No 2) [2013] FamCA 898
Case: [2013] FamCA 898
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered competing parenting applications concerning the child Y Bant, born in 2009. The mother, Ms Clayton, is an Australian citizen who resided in Dubai with the child and the father, Mr Bant, a United Arab Emirates national. The parties travelled to Australia in June 2013, intending to return to Dubai on 2 September 2013. However, the mother filed an application for parenting orders in Australia, stating she would not return to Dubai and sought orders for the child to live with her in Australia. The father sought orders for the child to return to Dubai and live with the mother, or alternatively, for the child to live with him if the mother did not return.

The court was required to determine the best interests of the child, specifically addressing issues of where the child should live and spend time. A central consideration was the credibility of the parties' divergent accounts on fundamental factual matters. The court also had to assess the risk of the child being removed from Australia to Dubai, particularly in light of the father's potential actions under UAE law to prevent the mother's involvement in the child's life. The court needed to balance the need to protect the child from psychological harm due to permanent separation from a primary carer or significant interruption of that relationship, against the risk of the father being unable to maximise his time with the child.

The court found the mother's evidence to be reliable and preferred it to the father's. It determined that there was an unacceptable risk of the father removing the child to Dubai, a risk that could not be eliminated by agreements or orders made in Dubai. The court concluded that the child would suffer psychological harm if permanently removed from the mother or if her time with the mother was significantly interrupted. Consequently, the court ordered that the child live with the mother and that the father have equal shared parental responsibility for major long-term issues, with the mother having sole responsibility for the child's residence and travel. The father's time with the child was to be supervised by a commercial provider when he was in Australia, and he was restrained from removing the child from Australia or taking steps to obtain travel documents for the child. The Australian Federal Police were requested to place the child's name on the All Ports Watch Alert System.

Orders