Clayton and Bant (No 2)

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.