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) | ||
| APPLICANT: | Ms Clayton | |
| RESPONDENT: | Mr Bant |
| FILE NUMBER: | LEC | 310 | of | 2013 |
| DATE DELIVERED: | 19 November 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 8, 9, 10, 11 and 15 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd SC and Ms McDiarmid |
| SOLICITOR FOR THE APPLICANT: | GJ Legal Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld QC and Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Barry Nilsson Lawyers |
ORDERS
IT IS ORDERED THAT
Save for paragraphs 13, 14 and 15 of the Interim Orders made on 26 August 2013, which are to remain in effect until 1 January 2014, all previous Orders and parenting plans be discharged.
Paragraphs 13, 14 and 15 of the Interim Orders made on 26 August 2013 shall be discharged as at 1 January 2014.
Parental Responsibility
The parents shall have equal shared parental responsibility for the child Y Bant (“the child”) born … 2009 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (“the Act”) save that the Mother shall have sole parental responsibility for the location of residence and travel of the child.
In the exercise of equal shared parental responsibility the Mother and the Father shall consult one another about decisions to be made in relation to major long-term issues as such issues may arise including but not limited to:
(a)the child’s schooling including decisions about the type of schooling and the schools at which the child shall attend;
(b)the child’s health, with the parents to keep each other informed and make joint decisions about the health of the child, in particular the need for any operations, dental treatment, speech therapy, physiotherapy, any specialist treatment, any alternative treatment and medicating the child on a long term basis, as well as attendance by the child for any reason upon a child psychologist, counsellor, family therapist or psychiatrist;
(c)the child’s religion and religious observation; and
(d)the child’s involvement in a sporting, cultural, artistic or community activity including competition or training.
Without limiting the Mother’s ability to contribute to the child’s religious and cultural education, the Father will be responsible for teaching the child the Muslim faith and Emirati culture and the Mother is released from any obligation to contribute to teaching the child the Muslim faith and Emirati culture.
The parents shall each be responsible for the daily care, welfare and development of the child during all such times that the child is in their respective care.
Live with
The child live with the Mother.
Communication with Father
The child shall communicate with the Father by telephone or Skype at such times as the child reasonably requests but otherwise between 6 – 7pm (New South Wales local time) on each alternate day when she is not otherwise spending time with the Father and in relation to such communication the Mother shall:
(a)ensure that the child is available to receive the telephone or Skype call; and
(b)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.
The Father shall be at liberty to have such other members of his family as he chooses to be present to participate in such communication.
Face to face time with Father
Commencing 1 January 2014 the child 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 parents.
Failing agreement otherwise, the child shall spend time with the Father when he is in Australia as provided for in paragraph 12 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;
(b)the Father’s lawyers 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 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 12 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 12.
The child spend time with the Father in periods notified in accordance with paragraph 11:
(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)in week one and each alternate week thereafter, from 5pm Friday until 5pm Sunday; and
(ii)in week two and each alternate week thereafter, from after kindergarten/school or otherwise from 3pm on Wednesday until the commencement of kindergarten/school on Thursday or otherwise until 9am Thursday and from 9am Saturday until 5pm Sunday;
(c)at places as agreed between the parties in writing from time to time and failing agreement within a radius of 20km of the township of Town B, New South Wales.
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 section 121 of the Act.
Provision of information
The Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number and in the Father’s case his address and telephone number for any period when he is in Australia; and
(b)keep the other parent informed of the name and address of any treating medical or other health practitioner who treats the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
This Order authorises the schools, kindergartens or day care centres attended by the child to give the parents information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at each parent’s expense).
Restraints and Watch List Order
The Father and his servants and/or agents are restrained from removing the child from the Mother’s possession and removing the child from the Commonwealth of Australia.
The Father and his servants and/or agents are restrained from taking any steps to obtain any passports or travel documents in respect of the child.
The Court requests that until further order, the Australian Federal Police place the names of the said female child born … 2009 being Y Bant … on the All Ports Watch Alert System at all international departure points in Australia and maintain those names on that system for a period of three (3) years.
Upon the expiration of the period referred to in Order 18 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the All Ports Watch Alert System.
The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are requested and authorised to take all necessary steps to give effect to these Orders.
Each parent is restrained from engaging in any form of physical discipline of the child.
During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Miscellaneous
Upon expiration of the appeal period or the determination of any appeal, the child’s passports that were made exhibits in these proceedings or otherwise surrendered to the Court be returned to the Mother.
All applications be otherwise dismissed and removed from the pending cases list.
Pursuant to s 62B and s 65DA(2) of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clayton & Bant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 310 of 2013
| Ms Clayton |
Applicant
And
| Mr Bant |
Respondent
REASONS FOR JUDGMENT
The child Y Bant (“the child”) born in 2009 and who is therefore now just four years of age is the subject of competing applications for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) by her mother, Ms Clayton (“the Mother”) and her father, Mr Bant (“the Father”).
The Mother was born in 1977 and is now 36 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 a United Arab Emirates (“UAE”) national and adheres to the Muslim faith. He identifies with his Arab culture as an Emirati.
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.
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.
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 Europe available for their use and also have property in Southeast 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 City Z.
In his evidence the Father identified with some precision his personal debt position and the debt he has guaranteed of the Bant Group (albeit that the currency stated seemed to vary) but was otherwise somewhat vague as to details of the trading performance and asset holding of the Bant Group. He referred to an evaluation of the group having been obtained at a worth of 200 million dirhams which at a current conversion rate translates to approximately $60 million in Australian dollar terms.
Apart from the Bant family interests in property in Europe and Southeast Asia the parties in these proceedings own some seven properties in Australia either jointly or in the name of either of them. These include three parcels of vacant land in northern Queensland; several real properties in the Town B NSW area and the Mother’s current residence at U, and an apartment at Surfers Paradise on the Gold Coast. The family have plainly enjoyed a very high standard of living to date residing in what can fairly be described as a luxury villa in Dubai and their extensively renovated U home in Australia as well as enjoying regular overseas travel.
It is unnecessary to the determination of these proceedings for the Father’s financial circumstances to be precisely determined given the concession by his Counsel on his behalf to the effect that the Court could proceed on the understanding that there was no real issue about the Father’s capacity to finance any parenting or time and communication arrangements that the Court might determine. Likewise, the Mother holds substantial real property in Australia in her name and there is also evidence that she holds cash reserves in her name of several hundred thousand dollars.
As already noted, the child Y was born in 2009 and is the only child of the relationship. She was born in Australia and holds Australian citizenship and also UAE nationality.
The Father also has a daughter from his first marriage to one Ms G. That child, namely R Bant was born in 1998 and has turned 15 years of age. R primarily resides with her mother in Dubai and historically has spent time with the parties on visits to their home in Dubai but also on their international travels, including to Australia and including in respect of the most recent visit. The Father married Ms G in about 1996 and they separated in about December 2005. It is anticipated that R will complete her school education in Dubai in about June 2016 and will thereafter undertake tertiary study either in London, the United States or in Australia.
From the time of her birth in 2009 until trial the child has spent about the same amount of time in Australia as she has 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 have sometimes remained in Australia whilst the Father attended to his business interests in Dubai. Particularly over the last two or three years it is clear that the child has spent more time in Australia than she has in Dubai. Relevant to the child’s age and cognitive development she spent the majority of 2012 in Australia and for some months of 2012 with the Mother only as the Father was working in Dubai.
There is evidence, discussed further below, that the parties had planned a future life in Australia. As already noted, substantial property was acquired in Australia over time apparently with a view to the parties being based in Australia in the long-term and there is evidence of plans or an intention for the child to be educated in Australia. There is also evidence that, at least from the Father’s perspective, his own father’s death in 2011 may have impacted upon such plans.
It is clear that there have been problems in the marriage for a considerable period of time. It is equally clear that the Mother, having crystallised an intention to effect a separation from the Father prior to the recent travel to Australia, actively sought to avoid separation occurring in the UAE which might have entailed parenting issues being resolved in that country. The Mother thus decided to await the family’s current travel to Australia in June to effect separation, which occurred on 5 July 2013.
On the Mother’s case there was a significant turning point in her attitude to maintaining the marriage as a consequence of conduct by the Father which she alleges occurred, which may be conveniently termed inappropriate disciplining of the child, during a holiday the parties and the child undertook to the USA in March/April 2013. This will be further discussed but, in short, the Mother perceived that at that point the Father was seeking to “control” the child by inappropriate forms of physical discipline and to her mind this represented a change from his actions being previously directed solely towards herself then being directed towards the child as well.
Evidence of the level of distrust between the parties that existed as at April 2013 is provided by events surrounding the Mother obtaining a release of funds invested years before with a bank in City XX.
It is not in issue that the Mother had invested funds she had inherited with a bank in City XX many years ago. It is also not in issue that the investment was at risk and that the Father funded legal costs and other expenses of actions taken to retrieve the investment. In April 2013 the Mother’s claim against the bank was finally successful and it was necessary for the parties to attend at the bank in City XX to collect the funds via the court.
The Father accompanied the Mother to the court in Dubai to execute Powers of Attorney to authorise a legal representative for the parties to attend the court in City XX to collect the cheque on behalf of the Mother.
Presented with a document in Arabic to sign the Mother obviously had a question in her mind as to whether this was in fact, as the Father said, a document necessary to retrieve the investment or whether the Father had some sinister motive to have her sign a document related to their marriage or to the child’s care arrangements.
That caused a significant disagreement between the parties and is mentioned here in context as demonstrating the level of distrust that then existed. There is ultimately no issue that the document was in fact what the Father said it was, namely a document necessary to be signed to retrieve the investment. The Father understandably in the circumstances took offence at the Mother’s distrust of him.
On 15 June 2013 the parties travelled to Australia with the child and also R, 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 and on or about 5 July 2013 the Mother obtained, on an ex parte basis, an apprehended domestic violence order in the B 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.
The Father and his family members at that time left the parties’ property at U near Town B and commenced occupation of the Surfers Paradise unit. His family members subsequently returned to Dubai and the Father has since then either remained in Australia in the Town B area or has returned briefly to Dubai from time to time to fulfil visa requirements and to attend to his business.
History of Proceedings
The Mother commenced proceedings in the Federal Circuit Court by filing an Initiating Application on 2 July 2013 supported by an affidavit she had sworn on 24 June 2013. The Father filed a Response on 12 July 2013.
On 6 August 2013 Judge Turner of the Federal Circuit Court ordered, inter alia, that the proceedings be transferred to this Court at Brisbane with a request for an urgent hearing.
The proceedings were then listed before his Honour Justice Bell on 20 August 2013.
On 20 August 2013 and in the course of that hearing Bell J recused himself from hearing and determining the matter and ordered that the matter be heard by another judge on an urgent basis.
The proceedings thus came before me initially on 26 August 2013 for an urgent interim hearing.
In advance of the hearing on 26 August 2013 the Court advised the parties of prospective trial dates. That was because the written submissions on behalf of the Father for the purpose of the hearing before Bell J on 20 August 2013 made it clear that it was then the Father’s position that this Court ought make a summary order for the child’s return to the UAE to enable the courts in the UAE to determine parenting arrangements for the child. As it would be relevant to consideration of the question of whether a summary order for return ought be made in the child’s best interests to have regard to the relevant period of time involved for the matter to be heard and determined by this Court, the parties were advised as to prospective trial dates commencing 8 October 2013.
At the outset of the interim hearing before me on 26 August 2013 it remained the Father’s position that a summary order for return ought be made to enable the courts of Dubai to hear and determine parenting issues. Moreover, an overlapping contention on behalf of the Father was that the subject proceedings instituted by the Mother were, in all the circumstances, vexatious and an abuse of process and ought be dismissed on that basis.
As is recorded in the reasons for judgment delivered on 11 September 2013 with respect to the interim hearing on 26 August 2013, in the event Mr Dunning of Queens Counsel for the Father acknowledged at the interim hearing that there were issues of fact that would need to be resolved via cross-examination, particularly questions as to the Mother’s capacity to reside in the UAE amongst other issues; and more investigation was required than an interim hearing on 26 August 2013 could afford for the Father to pursue his application for summary dismissal of the proceedings or summary order for the child’s return to the UAE.
On that basis the trial of the proceedings was listed for four days to commence on 8 October 2013 but with the Father’s position being reserved. That is, it remained the Father’s position that he would likely contend, after relevant investigation, that a summary order for return ought be made rather than full investigation and determination of final parenting orders by this Court.
Thus the Father’s affidavit of evidence in chief filed on 25 September 2013 for the purpose of the trial maintained the Father’s position that this Court ought determine it to be in the child’s best interests for a return order to be made on a summary basis and for parenting proceedings to be resolved on a final basis by the courts in Dubai.[1]
[1] See, for example, paragraph 216 of the Father’s affidavit filed 25 September 2013.
To similar effect, the Father’s Case Outline filed on 2 October 2013 contended for the primary order that it be determined in the child’s best interests “for matters in relation to her welfare to be heard and determined by a Court with the appropriate jurisdiction in Dubai.”
Both in his affidavit referred to and in his Case Outline the Father addressed the alternative in the event that this Court determined that parenting orders under Part VII ought be considered and determined in the usual way. That is, whilst the Father’s primary position was that a summary order for return ought be made his material also addressed relevant issues if a summary order for return was not made and the matter was determined in the usual way as a conventional parenting case.
In the event, at the commencement of the trial on 8 October 2013 Mr Bartfeld of Queen’s Counsel who appeared with Mr Alexander of Counsel for the Father confirmed that the Father was then no longer pressing any application for a summary order for return. Mr Bartfeld confirmed on behalf of the Father that the case was to be heard and determined as a conventional parenting case.[2]
[2] That is, pursuant to Part VII of the Act.
History of Domestic Violence Proceedings
As already noted, as a result of complaints made by the Mother at the time of separation the NSW police service filed an Application for an Apprehended Domestic Violence Order on behalf of the Mother in the Town B local court on 5 July 2013. On that date, a Provisional Order was made on an ex parte basis in favour of the Mother also naming the child as a protected person.
The interim domestic violence orders made in the Town B local court on 5 July 2013 were enlarged on 18 July 2013 and on 22 August 2013 those proceedings were set down for a final hearing for 20 September 2013. However, on 20 September 2013 it seems that the interim orders were discharged on the basis that the Police Prosecutor then withdrew that application because of, it seems, some technical difficulties. Whilst the initial application was withdrawn on 20 September 2013 on that same day a further application was filed by the NSW police service.
Whilst more will be discussed concerning the allegations of abuse or family violence within the meaning of the Act it was not contended at the trial by either party that having regard to s 60CC(3)(k) of the Act this Court could draw any relevant inferences from any domestic violence orders made or from any evidence in those local proceedings.
Events Leading up to Trial
From the date of separation on 5 July 2013 until the interim hearing on 26 August 2013 the Mother had not allowed the Father to spend face to face time with the child and he spent no face to face time with her until 1 September 2013 pursuant to the interim orders made on 26 August 2013.
As at the interim hearing on 26 August 2013 the Mother maintained the position that the child spending unsupervised time with the Father would expose her to risks to her welfare in two forms. First and foremost, the Mother contended that the Father had both the capacity and propensity to remove the child from Australia and to return to the UAE with her. With the Father’s enlivening of UAE law and imposition of travel bans and the like, as will be further discussed, it was thus contended by the Mother that there would be a risk that if the Father had unsupervised time she (the Mother) might never see the child again. Second, it was the Mother’s case then and at trial that the Father had engaged in inappropriate physical disciplining of the child commencing when the parents and the child were in the USA on a holiday in April 2013 and that unsupervised time would thus expose the child to the risk of that conduct by the Father being repeated or continued.
In the result at the interim hearing referred to, and without any admissions, consent orders were able to be reached addressing these issues on an interim basis pending their investigation at the trial. I emphasise, as I did in my reasons for judgment delivered on 11 September 2013 in respect of the interim orders made on 26 August 2013, that the Father made no admissions in relation to the risks alleged or agitated by the Mother or as to the historical conduct she had alleged in consenting to those of the interim orders which were made by consent including supervision of time and like provisions.
The effect of the interim orders was for the child to spend supervised time with the Father each alternate day between 10am and 3pm either at the Father’s nominated address in Town B or other locations in that area specified in the orders. The supervision was to be provided by a commercial provider of such services so as not to limit time to being within a contact centre.
Thus following separation on 5 July 2013 the child had no communication with the Father until Skype communication commenced on 27 July 2013 and thereafter took place on an almost daily basis. The Father first spent face to face time with the child on 1 September 2013 following the interim orders made on 26 August 2013 and thereafter on alternate days. Unfortunately prior to those orders it is the fact that it was the child’s birthday but because of the Mother’s stated concerns referred to she would not permit the Father to spend face to face time with the child on her birthday.
Following the interim orders of 26 August 2013 the Father has spent time with the child in accordance with the terms of those orders save for several occasions referred to when different arrangements have had to be made for various reasons which are unnecessary to detail here.
Also on 26 August 2013 an order was made for a family report to be prepared and the parties arranged for Mr M, social worker, to undertake such a report. Mr M’s report was available for trial and he was called to give oral evidence.
Mother’s Case and Proposed Orders
The central propositions advanced in the Mother’s case in one form or another (and not necessarily stated in order of priority) may be expressed in the following paraphrased and summarised form:
a)The Mother has devoted herself on a full-time basis to the primary care of the child since her birth. Beyond a couple of nights in August this year related to the Mother’s need to attend to these proceedings, the child has never spent an overnight period out of the care of the Mother. The Mother remains willing and able to continue her primary care role on a full-time basis if the child resides with her in Australia.
b)The child was born in Australia and over the period of her life has spent at least as much time in Australia as she has in Dubai. Particularly in recent years it is the case that the child has spent significant time in Australia including in 2012 when the child spent the majority of the year in Australia.
c)The Mother’s own mother Ms E has played a significant role in the child’s life to date and if the child resides in Australia with the Mother the significant input of the maternal grandmother will continue.
d)The Mother cannot and will not return to Dubai. The Mother has no right of residence in Dubai or the UAE; would there be under the financial and other control of the Father; would there be exposed to the prospect of imposition of travel bans at the instigation of the Father preventing her from ever leaving; and by reason of disclosures she has made in these proceedings the Mother would be exposed to prosecution and penalties under the law in the UAE were she to return, such penalties including incarceration and deportation. The Mother is prohibited by the law of the UAE from having a relationship with another man or repartnering.
e)The Father has historically threatened to invoke sharia law and his rights under that law in the UAE. The UAE is not a party to the Hague Convention on the Civil Aspects of International Child Abduction; the orders of this Court have no force and effect in the UAE; and if the Father were to invoke sharia law he could bring about the position that the child is retained by the Father in his sole care. That is, if the child is living with the Mother in Australia and visits the UAE the Father can ensure that the child never leaves the UAE. Alternatively, if the Mother returns to the UAE the Father has the means to have her dealt with under sharia law and/or to ensure that the Mother does not see the child.
f)Under sharia law if the Mother were living in the UAE and formed another relationship or re-married she would lose “custody” of the child and be exposed to imprisonment and deportation thereafter.
g)Given the opportunity the Father will act to return the child to the UAE; or at least there is a significant risk of that occurring.
h)If the child continues residing in Australia with the Mother the Father has ample financial means and capacity to regularly visit Australia as he has done historically; and the child’s relationship with the Father can thereby be maintained and developed.
i)Likewise the child’s instruction in the Muslim faith of the Father and her links to her Emirati culture can be achieved via visits by the Father and his family to Australia.
j)The child’s education in Australia would be consistent with the plans the parties had prior to separation for that to occur. Likewise, the child residing in Australia would be consistent with plans that the parties had formulated from years ago for them to relocate to Australia upon the Father’s retirement from the Bant Group.
k)Whilst the child has an attachment to her half-sister R it is likely that when R concludes her school education in Dubai in about mid 2016 she will leave Dubai for further study including the option of studying in Australia.
l)The Father has engaged in inappropriate forms of physical discipline of the child including threatening her; pulling her hair; pinching her; tying her up and leaving her in a darkened room with the result that she has been traumatised. Left unchecked, there is a risk that the Father will pursue such forms of physical discipline in the future.
m)Whilst the Father has not engaged in physical violence against the Mother he has historically made threats of harm sufficient to place her in fear of her personal safety and has made threats of imposing the laws of his home country.
Exhibit 1 in the proceedings is the minute of orders sought by the Mother. I confirmed with the Mother’s Counsel during submissions that it was the case that despite the Mother’s affidavit filed on 17 September 2013 expressly seeking an order for sole parental responsibility[3] the Mother in fact sought, as is reflected in exhibit 1, an order for equal shared parental responsibility save for the Mother having sole parental responsibility as to the location of residence and travel for the child.
[3] See paragraph 92 of the Mother’s affidavit filed 17 September 2013.
This was so despite the evidence of Mr M, which will be discussed in further detail below, in which Mr M expressed considerable pessimism about the prospects of these parents currently being able to consult and reach agreement on issues of parental responsibility.
As is reflected in exhibit 1, the Mother seeks orders that would see the child living with her in Australia and the Father having only supervised time with the child at designated locations and with such time not to include overnight periods. The requirement for these restrictions, on the Mother’s case, is first and foremost the prospect that the Father might remove the child from Australia and, secondly, to remove the risk of inappropriate physical discipline as alleged by the Mother.
During final submissions Counsel for the Mother sought to emphasise that whilst the orders sought by the Mother as expressed in exhibit 1 proposed day time visits, supervised, on alternate days, it was not so much the actual periods of time involved but the requirement for supervision that concerned the Mother. That is, as I understood the submission, the Mother was not seeking to impose a stricture that time could only occur on alternate days, rather than consecutive days, but was more concerned about the visits not including overnight periods and not including unsupervised periods mainly to address the alleged flight risk.
Father’s Case and Proposed Orders
As already referred to, subsequent to the filing of the Father’s affidavit for trial on 25 September 2013 and indeed subsequent to the filing of his Case Outline for trial on 2 October 2013 there was a significant shift in the Father’s case and position as at the commencement of the trial only six days later on 8 October 2013.
In short, at the outset of the trial the Father did not persist in any application such as that foreshadowed on the interim hearing on 26 August 2013 to the effect that the proceedings were vexatious or that they constituted an abuse of process. Moreover, the Father resiled from the position, which had been his primary position throughout these proceedings to that point, that the child’s welfare dictated that a summary order for the child’s return to the UAE be made for the courts of the UAE to hear and determine matters in relation to her welfare.
There were also some other differences which became apparent as the trial progressed between aspects of the Father’s case foreshadowed in his affidavit for trial as compared with the Father’s case advanced at trial. For example, some significant criticisms of the Mother’s parenting of the child alleged in the affidavit did not seem to be actively pursued at trial. In his affidavit the Father alleged that prior to separation the Mother was “stopping” the child from seeing the Father’s family.[4] There were also criticisms of the Mother’s attention to the child’s medical needs.[5] These did not seem to be pursued at trial and moreover it was emphasised on behalf of the Father by his counsel more than once during the trial that it was not the Father’s case that the Mother was anything other than a good mother or “very good mother” or “a fantastic mother” or “a terrific mother”.
[4] See paragraph 39 of the Father’s affidavit filed 25 September 2013.
[5] See paragraphs 67 to 71 of the Father’s affidavit filed 25 September 2013.
As the evidence at trial unfolded, particularly the expert evidence that will be referred to, the Father placed emphasis on the prospect of the parties entering into an agreement and having that agreement made an order in the Sharia Court in Dubai to give effect to orders made by this Court. In that way, it was contended, the risks identified in the Mother’s case could be addressed. In paraphrased and summarised form the central propositions in the Father’s case in one form or another (and not necessarily stated in order of priority) advanced at trial were:
a)The child has strong connections to the UAE including those based upon her residence there; her early education there; and her connections with the paternal family including her half-sister R; the paternal grandmother; the Father’s sisters MM and MH; and MH’s children and the Father’s brother HB, and significant household employees.
b)If the Mother returned to live in Dubai there could be an equal time arrangement and sharing of parental responsibility and the Father would not seek to invoke sharia law to operate in substitution for orders of this Court; to give effect to that he would irrevocably consent to the Mother re-partnering or re-marrying and would enter into an agreement, and seek to have the Sharia Court make orders to give effect to such agreement, achieving this outcome.
c)The Father has no present or foreseeable plans, and is unable, to relocate to Australia given his financial and other commitments to the Bant Group and the necessity for him to primarily reside in Dubai in order to attend to the needs of his family business.
d)The Father poses no unacceptable risk of physical abuse of the child. The Mother’s allegations are false and fall to be considered in the context of the Mother seeking to achieve the outcome she seeks by these proceedings.
e)There is no unacceptable risk of the Father either absconding with the child to Dubai; or retaining her there contrary to the orders of this Court; or if the Mother is living in Dubai, the Father invoking sharia law and the Father offers the making of an agreement to be made as an order of the Sharia Court to give effect to arrangements determined by this Court.
f)The child’s best interests would be served by her returning to Dubai, with or without the Mother.
g)The Mother’s proposed orders would preclude the child’s currently meaningful relationship with the Father from being maintained and developed and would not allow the child to know and enjoy her Arabic culture, language and way of life nor foster the child’s development in the Islamic faith.
At the submissions stage of the trial detailed final orders proposed by the Father addressing a number of different scenarios were handed up by his counsel in the following terms:
1.The child the subject of these orders is [Y Bant] born … 2009 (“the child”).
2.That within 30 days of the date of these orders, the mother and the father do all acts and sign all documents necessary to enter into an agreement and register that agreement as an order in the Sharia Court in Dubai on the following terms:
a)In the event that this Court considers that it is in the best interests of the child to reside in Dubai and the mother chooses to live in Dubai:
i.The child live with the mother in Dubai;
ii.The child spend time with the father as agreed between the parties and failing agreement:
1.In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday;
2.In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday; and
3.For half of all of the child’s school/kindergarten holidays, being the first half in odd numbered years and the second half in even numbered years.
b)In the event that this Court considers that it is in the best interests of the chid to reside in Dubai and the mother chooses not to live in Dubai:
i.The child live with the father in Dubai;
ii.The child spend time with the mother as agreed between the parties and failing agreement:
1.For all of the child’s Dubai school/kindergarten holidays at the end of terms 1, 2 and 3 each year, in Australia or elsewhere;
2.For half of all the child’s Dubai school/kindergarten holidays at the end of term 4, being the first half in odd numbered years and the second half in even numbered years each year, in Australia or elsewhere; and
3.In Dubai, at any time the mother chooses to visit Dubai:
a)In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday; and
b)In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday.
c)In the event that this Court considers it is in the child’s best interests to live in Australia and be permitted to leave the Commonwealth of Australia:
i.The child live with the Mother in Australia;
ii.The child spend time with the father as agreed between the parties and failing agreement:
1.For all of the child’s Australian school/kindergarten holidays at the end of terms 1, 2 and 3 each year, either in Australia or overseas including Dubai; and
2.For half of the child’s Australian school/kindergarten holidays at the end of term 4, being the first half in odd numbered years and the second half in even numbered years each year, either in Australia or overseas including Dubai; and
3.In Australia, at any time that the father chooses to visit in Australia:
c)In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday; and
d)In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday.
d)That the agreement be expressed to be irrevocable on any basis whatsoever in any Court of the United Arab Emirates.
3.In the event that the mother and the father do not comply with order 2, for whatever reason, either party is at liberty to relist the matter within 7 days.
4.That save and except for the registration of the agreement referred to in order 2 with the Sharia Court in Dubai, and the enforcement of that agreement, the mother and father are restrained and an injunction is granted restraining them from commencing any proceedings in the United Arab Emirates in relation to the child.
5.That the mother and father have equal shared parental responsibility for the child.
6.In the exercise of equal shared parental responsibility, the mother and father shall consult with one another about decisions to be made in relation to the major long term issues, as such issues may arise including but not limited to:-
a)The child’s schooling including decisions about the type of schooling and the schools at which the child’s (sic) shall attend;
b)The child’s health, with the parents to keep each other informed and make joint decisions about the health of the child, in particular the need for any operations, dental treatment, speech therapy, physiotherapy, any specialist treatment, any alternative treatment and medicating the child on a long term basis, as well as attendance by the child for any reason upon a child psychologist, counsellor, family therapist or psychiatrist;
c)The child’s religion and religious observation; and
d)The child’s involvement in a sporting, cultural, artistic or community activity including competition or training.
7.Without limiting the mother’s ability to contribute to the child’s religious and cultural education, the father will be responsible for teaching the child the Muslim faith and Emirate culture and the mother is released from any obligation to contribute to teaching the child the Muslim faith and Emirate culture.
8.That the mother and father each have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during the periods when the child is living with them.
9.In the event that this Court considers that it is in the best interests of the child to reside in Dubai and the Mother choses to live in Dubai:
a)The child live with the mother in Dubai;
b)The child spend time with the father as agreed between the parties and failing agreement:
i.In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday;
ii.In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday; and
iii.For half of all of the child’s school/kindergarten holidays, being the first half in odd numbered years and the second half in even numbered years.
10.In the event that this Court considers that it is in the best interests of the chid to reside in Dubai and the mother chooses not to live in Dubai:
a)The child live with the father in Dubai;
b)The child spend time with the mother as agreed between the parties and failing agreement:
i.For all of the child’s Dubai school/kindergarten holidays at the end of terms 1, 2 and 3 each year, in Australia or elsewhere;
ii.For half of all the child’s Dubai school/kindergarten holidays at the end of term 4, being the first half in odd numbered years and the second half in even numbered years each year, in Australia or elsewhere; and
iii.In Dubai, at any time the mother chooses to visit Dubai:
1.In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday; and
2.In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday.
11.In the event that this Court considers it is in the child’s best interests to live in Australia and be permitted to leave the Commonwealth of Australia:
a)The child live with the Mother in Australia;
b)The child spend time with the father as agreed between the parties and failing agreement:
i.For all of the child’s Australian school/kindergarten holidays at the end of terms 1, 2 and 3 each year, either in Australia or overseas including Dubai; and
ii.For half of the child’s Australian school/kindergarten holidays at the end of term 4, being the first half in odd numbered years and the second half in even numbered years each year, either in Australia or overseas including Dubai; and
iii.In Australia, at any time that the father chooses to visit in Australia:
1.In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday; and
2.In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday.
12.In the event that this Court considers it is in the child’s best interests to live in Australia and not be permitted to leave the Commonwealth of Australia:
a)The child live with the mother in Australia;
b)The child spend time with the father in Australia as agreed between the parties and failing agreement:
i.For all of the child’s Australian school/kindergarten holidays at the end of terms 1, 2 and 3 each year;
ii.For half of the child’s Australian school/kindergartden holidays at the end of term 4 each year, being the first half in odd numbered years and the second half in even numbered years; and
iii.At any time that the father chooses to visit in Australia:
1.In week 1 of each fortnight from after school/kindergarten on Wednesday until before school/kindergarten on Sunday; and
2.In week 2 of each fortnight from after school/Kindergarten on Thursday until before school/kindergarten on Sunday.
13.That the child is able to communicate with both parents, at all reasonable times, by any means available.
14.In the event that the child is permitted by this Court to leave the Commonwealth of Australia:
a)The child be removed from the All Ports Watch Alert System at all points of arrival and departure in the Commonwealth of Australia and that the Australian Federal Police do all acts and things necessary to remove the child from the All Ports Watch Alert System at all points of arrival and departure in the Commonwealth of Australia;
b)The Mother be at liberty to forthwith collect any and all passports of the child held by the Family Court of Australia;
c)Unless otherwise ordered herein, during the time that the child spends with the mother and the father, either parent is at liberty to travel internationally with the chid (sic) as agreed between the parties in writing and failing agreement provided:
i.The other parent is informed in writing 30 days prior to the proposed travel; and
ii.The other parent receives a copy of the child’s itinerary in writing 7 days prior to the proposed travel;
d)In the event that the father is desirous of travelling with the child, and in the event that the parties have agreed or the father has otherwise complied with the requirements of paragraphs 14(c)(i) and 14(c)(ii), the mother will provide him with the child’s passports within 24 hours, and, the father will return the child’s passports to the mother at the next changeover of the child.
15.That the orders made by this Honourable Court on 26 August 2013 be discharged.
16.All Applications before this Court be removed from the pending cases list.
17.Pursuant to section 65L of the Family Law Act 1975 (Cth), the mother is to forthwith cause the child to attend at Child Dispute Services in the Brisbane Registry of this Court immediately following delivery of this judgment so that a Family Consultant may assist the parties by explaining to the child the effect of the parenting Orders and to otherwise provide the parties with such assistance as they may reasonably require to comply with and carry out these Orders.
18.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Statutory Framework
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
1.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
2.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
3.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) requires that in applying the primary considerations the Court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”.[6] This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).
[6] Defined in s 64B of the Act.
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider whether it is in the best interests of the child and reasonably practicable to make an order for substantial and significant time with each of the parents.[7]
[7] “Substantial and significant time” is defined in s 65DAA(3) of the Act.
The operation of the statutory framework and the manner in which the Court approaches its application including the determination of the s 60CC “best interests” considerations is well-settled by authority (see, for example, Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; Sayer & Radcliffeand Anor (2013) 48 Fam LR 298; and Cox & Pedrana (2013) FLC 93-537).
Whilst substantial amendments to Part VII of the Act took effect from 7 June 2012 which, inter alia, significantly widened the definition of “family violence” as it now appears in the amended Act; the guidance or guidelines provided by the cases referred to is not materially affected by the amendments to Part VII save only that it is to be recognised that s 60CC(2A) now requires greater weight to be given to the second of the two primary considerations.
As already recorded, as at the outset of this trial the Father abandoned pursuit of any contentions to the effect that the proceedings instituted by the Mother were vexatious or constituted an abuse of process and he also abandoned pursuit of a summary order for the child’s return to the UAE.
Findings re Foreign Law: Law of the UAE
Given the Mother’s case as to risk of the child’s removal or retention in the UAE and the consequences, or possible consequences if the law of the UAE was to be invoked; and the Father’s case as to the Mother being able to return to the UAE; and as to an agreement being entered into and formalised via court order in Dubai said to address any perceived risks; it is necessary to resolve, to the extent necessary, the relevant law of the UAE relevant to these contentions.
It is uncontroversial that foreign law is a question of fact, not of law, to be determined on the evidence. As sections 174 and 175 of the Evidence Act 1995 (Cth) reflect, the Court may have regard to relevant statutes or law reports of foreign countries in determining such questions.
In this case, apart from English translations of statute law applicable in the UAE the Court has received expert evidence via the written reports of each of Ms MB and Mr IE attached to their respective affidavits and each of those experts also gave oral evidence at the trial.
The Mother had originally retained Ms MB to provide expert evidence and her report was available at the interim stage of the proceedings. As events transpired the Mother also retained Mr IE to provide expert evidence. In the result, for the purposes of the trial the Mother relied upon the expert evidence of Mr IE (and not Ms MB) and Mr IE was called to give evidence in the Mother’s case. The Father placed reliance upon the report and evidence of Ms MB (and not Mr IE) and Ms MB was called to give evidence in the Father’s case.
Each of those witnesses provided evidence to explain the meaning and effect of the relevant codes and statutory provisions of the UAE.
Each of those witnesses provided a curriculum vitae setting out their qualifications, training and experience. I am satisfied that each of Ms MB and Mr IE have “specialised knowledge based on the person’s training, study or experience” within the meaning of each of s 13(8) and s 79 of the Evidence Act 1995 (Cth).
In my judgment, of the two experts referred to, Mr IE has considerably longer and a significantly wider breadth of experience than Ms MB. Moreover, related to that feature, having seen each of the experts give evidence I found that of the two experts Mr IE was the more persuasive in explaining his opinion where there were any points of difference between the two experts, for example, in the area of agreements to be discussed.
Amendments made to the Act which came into effect on 7 June 2012 and thus apply to these proceeding included substantially amended definitions of “abuse” and “family violence” for the purposes of the Act, particularly a greatly expanded definition of the meaning of the latter.
The amended definition of “abuse” is:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB of the Act contains the definition of “family violence” and provides as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Subsection (2) of s 4AB provides examples of behaviour that may constitute family violence; subsection (3) provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences its effects; and subsection (4) sets out a list of examples of situations that may constitute a child being exposed to family violence.
My acceptance of the Mother’s evidence concerning the Father’s inappropriate physical disciplining of the child means that each instance of such conduct probably constitutes an “assault” and “family violence” within the meaning of the sections.
It will be readily understood that the now amended definition of “family violence” in s 4AB embraces all kinds of behaviour, in terms of severity and incidence. Thus the extent to which any “family violence” is to be considered within the meaning of s 60CC(3)(j) and (k) must obviously reflect the nature and severity of the family violence concerned.
My acceptance of the Mother’s evidence means that there was “family violence” within the meaning of the section, as follows:
a)The inappropriate physical disciplining of the child which caused the Mother to be fearful;
b)The Mother gives evidence of numerous incidences where arguments entailed the Father becoming so angry that she was fearful and in this context the argument of 26 March 2012 was one;
c)The threats made by the Father, which need not be detailed seriatim, but which include threats to remove the child, to “ban” the Mother would, given the Mother’s response to them, constitute family violence within the meaning of the section.
Whether preferable to make order least likely to lead to further proceedings – s 60CC(3)(l)
I have earlier highlighted the factors favouring emphasis being placed in this case upon shorter term, rather than longer term, aspects.
It remains at least a possibility that R will choose to study in Australia for her tertiary education and on the Father’s evidence that may mean that from about mid-2016 the Father would elect to primarily base himself in Australia.
That prospect aside, I have in the earlier identification of factors referred to, noted a number of things that may change in terms of the parties’ respective circumstances as compared to the positions they currently find themselves in so relatively soon after their final separation.
There is in this case thus a certain inevitability about the need for orders now made to be reconsidered at some point in the future, particularly having regard also to the child’s young age. It may be that the parties themselves, over time, elect to effect changes by agreement but my reason in emphasising that I have placed some focus upon shorter-term considerations is that a court subsequently called upon to exercise jurisdiction under Part VII may be more readily inclined, than otherwise might be the case, to entertain a further parenting proceeding after the next several years, subject to any significant change in the circumstances then or indeed in the meantime.
Balancing s 60CC considerations
In my judgment the balance of the s 60CC considerations overall overwhelmingly favours the conclusion that the child’s best interests would be best served by orders along the lines of the Mother’s proposed orders.
Against the background of the historical care arrangements with the child’s primary care being provided by the Mother and the consequent position of the Mother as the child’s primary attachment figure then, taking into account the child’s tender age, orders along the lines as proposed by the Mother best allow for the child’s primary relationship with the Mother to be maintained and strengthened.
As already observed, the Mother remains willing and able to provide for the child’s care on a full-time basis and that has essentially been the child’s experience to date.
In my judgment, the acknowledged disadvantages for the child of remaining in Australia in the primary care of the Mother can be better addressed by orders in terms of the Father’s time and involvement in her life than is the position if the child return to live in Dubai with the Father. Leaving aside the issue of unacceptable risk, given my acceptance of the Mother’s position that she will not return to visit Dubai there would be obvious and significant limitations placed upon the child’s relationship with the Mother were the child primarily living in Dubai.
I am satisfied that the Father can, as he has done historically, spend significant periods in each year in Australia of up to four months in total. That provides a significant foundation for the child’s bond with the Father to be maintained, as Mr M assessed.
It follows from my findings regarding unacceptable risk that the Mother’s proposed orders likewise address that risk in the child’s best interest.
As already noted, in final submissions counsel for the Mother emphasised that the time proposed in the orders outlined in exhibit 1 was based upon the need to guard against the “flight risk” rather than being directed to the actual time in the child’s best interests. That is, it was acknowledged that consecutive day time contact was equally feasible and that the proposed alternate days was simply a method to address the issue of “flight risk”. The Mother remained opposed to overnight time.
On my findings, the need for supervision now does not arise from any need arising out of the issue of inappropriate physical disciplining of the child. The need for supervision is now only in relation to the means by which the child’s best interests are preserved by guarding against the “flight risk”.
In this context there therefore needs to be a balance between guarding against the “flight risk” and maximising the child’s time with the Father consistent with her best interests overall. In this respect, the child spending overnight time with the Father needs to be considered in context.
Leaving aside questions as to the “flight risk” and the Father’s inappropriate physical disciplining of the child, Mr M considered that the child’s time with the Father should be unsupervised and that it should include overnight periods. Having regard to the child’s current age Mr M opined that one or two nights per week in the period that the Father is visiting Australia would be desirable. Mr M considered that in periods when the child is attending kindergarten or school she might spend one night during the week with the Father and then one night every second weekend with perhaps another night interspersed between those. In other words, spending three nights per fortnight with the Father during periods when he is in Australia.
On the scenario of supervision Mr M considered two consecutive days would offer more continuity than alternate day time periods.
Because of the Father’s substantial financial means there are not, in this case, the usual practical problems concerned with supervision being provided at a contact centre or time being limited by the financial means of the relevant party. Since the interim orders were made funding of a private service seems to have been successful. Overnight time, supervised, may be feasible if the commercial providers of such supervision will do so on an overnight basis.
I will return to this topic in discussing the orders to be framed, after considering the issue of parental responsibility
Parental Responsibility – Orders
My findings as to “abuse” and as to “family violence” result in the conclusion that there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence within the meaning of s 61DA(2) of the Act with the result that the presumption in s 61DA(1) does not apply.
The Father seeks an order for equal shared parental responsibility. The Mother seeks an order for equal shared parental responsibility save that she seeks that she have sole parental responsibility “for the location of residence and travel of the child”.
Section 65DAC of the Act sets out the effect of a parenting order that provides for equal shared parental responsibility. Relevantly, that requires decisions to be made jointly and requires consultation and genuine efforts to come to a joint decision about a decision involving a major long-term issue in relation to a child.
In his oral evidence Mr M expressed significant reservations about the capacity, in the current circumstances, of the parents to be able to successfully consult about decision making. Whilst I accept the force of Mr M’s opinion in this respect I am satisfied that these two intelligent and loving parents have given careful consideration to this aspect and the need to put aside any personal preferences in the child’s best interests.
It would be in the child’s best interests for there to be an order for equal shared parental responsibility albeit that I am satisfied that her best interests would be met by allocating sole parental responsibility to the Mother in respect of issues of residence and travel as this may provide a further safeguard in all the circumstances of this case.
I am satisfied that order in terms of paragraphs 6 and 7 of the Father’s proposed orders ought be made. It is in the child’s best interests, as acknowledged by both parents, that she have the opportunity to learn about the Muslim faith and her Emirati culture and the Father will be instrumental in those things.
As I propose to make a parenting order providing for equal shared parental responsibility (at least in part) s 65DAA requires consideration of equal time or substantial and significant time, and the reasonable practicability of such orders.
Having regard to my discussion and conclusions concerning best interests considerations I am not satisfied that an order for equal time would be in the child’s best interests. In any event, in circumstances where the Mother remains living in Australia and the Father remains living in Dubai such an order could not be reasonably practicable within the meaning of s65DAA(5).
Even for the periods when the Father can be in Australia I do not consider that it would be the child’s best interests for there to be equal time even if, in respect of those periods, it could be said to be reasonably practicable to make such an order.
In terms of substantial and significant time (within the meaning of s 65DAA(3) it seems to me that at least for the periods when the Father is in Australia an order for the child to spend substantial and significant time with the Father would be in her best interests and is reasonably practicable.
In circumstances where the Court concluded it to be in the child’s best interests to live in Australia and not be permitted to leave Australia the Father sought orders in terms of paragraph 12 of his proposed orders. That proposal involved the child spending each of her Australian kindergarten or school holidays at the end of terms 1, 2 and 3 with the Father and half of the long holidays at the end of each year.
In addition, the Father sought orders in respect of periods when he was in Australia that would involve the child spending four overnight periods with the Father “in week one” of each fortnight and three overnight periods in the next week of fortnight, an overall seven overnights per fortnight or, in effect, equal time.
I have determined, for reasons already outlined, that an equal time order would not be in the child’s best interests at this stage. I consider that to be so based upon Mr M’s evidence and my own conclusions as to the child’s attachment with her primary care figure and my findings on the best interest considerations overall. Superimposed upon that is the issue of “flight risk”.
Provided the Father can arrange and finance the present supervising service LC Services or such other firm as provides equivalent supervising services I consider that the balance between the child’s need for a meaningful relationship with the Father and for her to spend substantial and significant time with the Father during periods when he is in Australia is achieved by supervised time from 5pm Friday until 5pm Sunday in the first week and in the second week overnight from after kindergarten or school or otherwise at 3pm on a Wednesday until the commencement of kindergarten/school on Thursday or 9am Thursday and weekend time.
It may be that a commercial provider of supervision services will not undertake overnight periods in which even these times are to be treated as maximums with actual time being as much of them as is possible. Supervision is the priority.
Balanced against that having regard to the relevant risk I consider it appropriate to make orders along the lines of those sought by the Mother as to where time is to occur but not so constrained. That is, whilst the Father sought orders which would allow him to travel wherever he chose in Australia with the child during the periods he is here I consider it legitimate in meeting questions of risk in the child’s best interests to confine the locations albeit that I consider the Mother’s proposal is too restrictive, in the balance.
In this context I reiterate that the child is only four years of age. Now and for the foreseeable future there is no reason to suppose that the quality of the Father’s time with the child would be lessened by constraints about location. For the child, at her age and for the next few years, quality of time is obviously about spending the time with the parent in activities and it seems to me that a multitude of activities would be available to the Father to maximise the quality of the child’s experiences with him notwithstanding the constraints of location referred to.
I have determined that the provisions for the Father’s time with the child provided for in the Interim Orders made on 26 August 2013 should continue for the remainder of this year with the new regime to commence on 1 January 2014.
An added protection, raised with the Father’s counsel during submissions, would be the Father’s surrender of his Emirati current passport to his lawyers at the outset of his visits to Australia in advance of him spending time with the child and his passport being so retained until the last of such contemplated periods during each visit.
I propose to make the other orders proposed of the Mother in terms of the Airport Watch List and the surrender of passports and the like as protective measures in the child’s best interests.
Whilst the Mother sought an order for the child’s names to be maintained on the Airport Watch List for a period of two years, I have determined that a period of three years is appropriate in the circumstances, particularly the unknowns about the Father as to R’s choice for tertiary study after mid-2016 and the Father’s retirement plans. It may be that the matter will be revisited prior to the expiration of this period.
I have earlier referred to the conclusion that it is in the child’s best interests that an order be made requiring both parents to refrain from any physical disciplining of the child.
It seems to me that it will be necessary for these orders and reasons to be published to LC Services or any other commercial provider of supervision services so that an understanding is gained as to the requirement for supervision and its nature and importance.
Whilst an order was sought by the Father pursuant to s 65L which would oblige the child being brought to the Child Dispute Services in the Brisbane Registry to have these orders explained to her I do not consider that order to be necessary nor in the child’s best interests. She is only four and I note that Mr M did not interview her for the purpose of his report and neither of the parties suggested that he should.
I certify that the preceding three hundred and seventy-five (375) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 November 2013.
Associate:
Date: 19 November 2013
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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