CLAYTON & BANT

[2013] FamCA 790

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT [2013] FamCA 790

FAMILY LAW – CHILDREN – Interim proceedings – 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 regularly –  Where the parties travelled to Australia with the child in June 2013 and were to return to the United Arab Emirates in September 2013 – Where the Mother obtained a protection order against the Father and filed an application for parenting orders under Part VII of the Family Law Act 1975 – Where the Father sought an order for summary return of the child to the United Arab Emirates – Where the Father’s legal representatives acknowledged that there are a number of disputed issues of fact that could not be resolved without oral evidence – Where the parties agreed that a parenting trial of the relevant issues was necessary – Where the Father reserved his position to argue for a summary order for return at trial.

FAMILY LAW – CHILDREN – Interim proceedings – With whom a child spends time – Where the Mother alleges the Father poses a risk to the child if he were to spend unsupervised time with her – Where the Mother alleges the Father would act to return the child to the United Arab Emirates – Where the Father was prepared to provide undertakings and to spend supervised time with the child pending the trial.

Family Law Act 1975 (Cth)

APPLICANT: Ms Clayton

RESPONDENT: Mr Bant

FILE NUMBER: LEC 310 of 2013

DATE DELIVERED: 11 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: GJ Legal Solicitors

COUNSEL FOR THE RESPONDENT: Mr Dunning  Q.C. and Mr Alexander

SOLICITOR FOR THE RESPONDENT: Barry Nilsson Lawyers

Orders

It is ordered

1. That the Father file an Amended Response setting out the final parenting orders sought in the event that his interim relief is refused, within seven days hereof.

2. That the Mother file and serve any further affidavits of evidence-in-chief within 14 days of the service of the Amended Response.

3. That the Father file and serve any further affidavits of evidence-in-chief within 21 days of service of the Amended Response.

4. That the parties’ applications be adjourned to 10:00 am on 8 October 2013 for hearing on a final basis for four days.

5. That until further order, Y Bant born … 2009 (“the child”) live with the Mother.

6. That the Father be restrained by himself, his servants or agents from removing the child from the Mother’s possession and removing the child from Australia.

7. That the Father surrender to the Family Court of Australia all passports in respect of the child however described until further order.

8. That the Father, Mr Bant, be restrained from taking any steps to obtain any passports or travel documents in respect of the child, Y born … 2009.

9. That 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 two years.

10. That upon the expiration of the period referred to in order 9 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.

11. That 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.

12. That the parties participate in a Family Report with respect to the views, attachments and best interests of the child and to that end will attend upon Mr M at times appointed by him and will share equally the costs of such report.

13. That until further order, the Father spend time and communicate with the child on each alternate day between the hours of 10.00 am and 3.00 pm, commencing on Wednesday, 28 August 2013, such contact to occur at Town B, Beach C, and Beach A, Town B including food and retail establishments of either beach, and to be supervised at all times by a commercial supervisor at the Father’s expense in the first instance.

14. That should the Father be unable to spend time with the child as specified herein, he shall give the Mother, through her solicitor, seven days’ notice in writing.

15. That the supervisor shall be instructed, by the provision of a copy of these orders, to ensure that he or she keeps the child in his or her sight at all times and should the child be removed from his/her supervision, shall forthwith advise by telephone, text or other speedy means, the Mother and/or her legal representatives at numbers and/or email addresses nominated by the Mother in advance.

16. Pursuant to s 65DA(2) and s 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.

    AND IT IS NOTED THAT the Respondent Father was prepared to provide written undertakings in respect of the subject matter in each of orders 6, 7 and 8.

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

1. On 26 August 2013 I made interim orders pending a trial of the parties’ competing applications set down to commence on 8 October 2013. These are the reasons for those orders.

2. The child Y, born in 2009 and thus now four years of age, is the subject of competing applications for orders pursuant to Part VII of the Family Law Act 1975 (Cth) made by her mother Ms Clayton (“the Mother”) and her father Mr Bant (“the Father”).

3. The Mother, an Australian citizen, moved to the United Arab Emirates (“UAE”)in 2001 where she worked for a company that is owned and controlled by the UAE government.[1] In about 2006 she there met the Father, a UAE national. They married in 2007 in Dubai.

   [1] Father’s Affidavit filed 25 September 2013, [12].

4. In Dubai, the Father is the director of his family company referred to in these proceedings as “The Bant Group”. That company appears to have extensive business interests in construction, publishing and advertising, hospitality, boat building and trading. The Father’s extended family own properties in Europe and South East Asia whilst the parties also own properties in New South Wales and in Queensland, Australia.

5. As already noted the child was born in 2009. Since her birth and over recent years the child and the Mother (also often with the Father) have spent significant time in Australia. For example, in the 2011 calendar year the child and the Mother spent about four months in Australia and in the 2012 calendar year spent more than seven months in Australia. Whilst the Father has travelled to Australia with the Mother and the child he has often had to return to Dubai for work or business purposes.

6. In June 2013 the child travelled to Australia with her parents and also with the Father’s mother and sister; his fourteen year old daughter R from an earlier marriage and a nanny. Return flights to the UAE were booked for 2 September 2013.

7. It was planned that the Father’s mother and sister and his older daughter R would return to the UAE on 10 July 2013. Whilst it is unnecessary to discuss this aspect in any detail, it is clear that there had been ongoing difficulties in the parties’ relationship for some time prior to this recent travel.

8. On 5 July 2013 the parents attended counselling in Town L.

9. On or about 5 July 2013 the Mother obtained a Protection Order/ apprehended domestic violence order in the Town B local court against the Father.

10. The parties separated on 5 July 2013 when the Mother left the U property with the child. The parties are not divorced.

11. On 7 July 2013 the Father and his extended family members left the property at U owned by the parties and commenced staying at a property owned by the Father at Surfers Paradise, with the Mother and the child remaining at the U property.

12. On 2 July 2013, the Mother filed an Initiating Application in the Federal Circuit Court which application was subsequently amended. The Mother sought orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for her to have sole parental responsibility for the child and for the child to live with her in Australia plus a range of injunctive-type relief was sought.

13. On 6 August 2013 Judge Turner of the Federal Circuit Court transferred the proceedings to this Court.

14. On 20 August 2013 Bell J recused himself from hearing and determining the matter. That made it necessary to urgently re-list the proceedings which became before me on 26 August 2013.

15. Taken from the material relied upon by the Father, particularly paragraph 12 of the written submissions filed on his behalf for the purpose of the hearing on 20 August 2013, it appeared that the Father would be seeking a summary order for return of the child to the UAE. That is, whilst the orders sought as contained in the Father’s response were not entirely clear as to the position he took in the proceedings, it seemed clear enough from the written submissions that had been filed on his behalf for the purpose of the hearing on 20 August 2013 that the Father was urging the conclusion that the welfare of the child required the making of a summary order for her to be returned to the UAE so that questions of her custody or parenting arrangements could be determined in that forum.

16. Thus, in advance of the hearing on 26 August 2013, I caused the parties to be informed as to trial dates that could be obtained in this Court. That is, I took the view that the parties needed to know what was the likely time period in terms of the time involved in a full investigation of the merits of competing parenting applications if the trial was to occur in Australia as compared to a summary and speedy return to the UAE. Thus the parties were advised in advance of the interim hearing before me on 26 August 2013 that hearing dates for a trial could be allocated for four days commencing 8 October 2013.

17. At the outset of the hearing on 26 August 2013 I confirmed with Mr Dunning of Queens Counsel, who appeared with Mr Alexander of Counsel for the Father, that despite the terms of the orders sought in his formal response (in particular paragraph 3) the Father indeed did seek an order for summary return of the child to the UAE.

18. In the course of exchanges between bench and bar I confirmed with Mr Dunning that it seemed to me to be the position on the relevant authorities[2] that the Father would need to establish that the child’s welfare required the making of a summary order for return, so that questions concerning her welfare could be determined in the UAE, in circumstances where an investigation of the merits of the parenting case could not take place until the proposed trial dates of 8 October 2013.

    [2] As discussed and summarised in Randle & Randle [2011] FamCA 830.

19. It became apparent during argument that there were a number of central issues of disputed fact. Importantly, these included the Mother’s security of tenure in the UAE in the face of the parties’ separation. On the Father’s case whilst it is the fact that the Mother was born in Australia and is an Australian citizen he contended that she has residency entitlements in the UAE. In contrast, on the Mother’s evidence, her UAE visa was due to expire in November 2013 and if she returned to the UAE she and the child would be subject to Sharia law and would be unable to leave without the Father’s permission.

20. Further, the Mother’s evidence was to the effect that the Father would have the means to take full custody of the child in the UAE because the Mother was not a practicing Muslim (another issue in dispute) and also that if the Mother formed another relationship or remarried she would lose custody of the child, be imprisoned and eventually deported. These issues were disputed.

21. Other central issues of disputed fact concerned the Mother’s allegations against the Father of domestic or family violence; and allegations concerning his physical disciplining of the child; and allegations that the Father would act to leave Australia with the child if he had any opportunity to do so.

22. Mr Dunning acknowledged that these disputed issues of fact could not be resolved without oral evidence and his estimate was that a trial of the relevant issues, even in relation to the Father’s case for a summary order for return, would occupy some two days.

23. The Court acceded to a request by the respective counsel for the parties to stand the matter down to see whether agreement could be reached as to the manner of disposition of the case.

24. In the event, upon resumption Mr Dunning confirmed that it was the Father’s position that he sought to reserve his position of being able to argue for a summary order for return at the trial but acknowledged the necessity for there to be a trial of relevant issues for that purpose. That is, the Father did not pursue an order for summary return on 26 August 2013 but rather acknowledged there would be a need for there to be evidence at trial for him to pursue that application as part of a parenting trial under Part VII of the Act.

25. For her part, the Mother maintained the position that there ought be a parenting trial for orders to be made pursuant to Part VII of the Act in the usual way.

26. That left as the only interim issues for determination, pending trial of these proceedings given that it was ultimately resolved that the trial would proceed for four days from 8 October 2013, the matters now discussed.

27. For his part, the Father was prepared to give undertakings in respect of a number of orders sought by the Mother in lieu of orders being made. As was explained in the course of the hearing, given the nature of the restraints so far as travel and passports and the like were concerned, in terms of the authorities acting where necessary, it is the fact that these agencies may not act where there are no orders in existence that can be provided to such authorities. On that basis, orders rather than undertakings were made with a notation being made on the orders to the effect of the Father’s preparedness to provide such undertakings.

28. The Mother advanced a case that the Father would be able to secure a passport for the child and also maintained a case that the Father’s evidence on the surrender of passports to date had been inconsistent. In the event, it is unnecessary to resolve those issues given that the orders to be made are on an interim basis and only operate until further order with the trial to occur from 8 October 2013.

29. The remaining issues to be resolved concerned the Father’s time with the child in the relatively short period pending the trial, against the background of what may be termed the Mother’s allegations concerning risk or potential risk to the child’s welfare, which allegations are disputed by the Father and cannot be resolved on an interim hearing.

30. It had been the Father’s case that he would need to return to the UAE on 2 September 2013 given that he was in Australia on a temporary tourist visa. In the event, it was confirmed in oral argument that whilst the Father may need to leave Australia his absence might be temporary and he would be able to return to Australia both for the purposes of seeing the child and also for the trial.

31. Relevant to the Father’s time with the child in the relevantly short period pending the trial were the Mother’s untested allegations and evidence concerning the alleged risk posed by the Father of him having unsupervised time with the child. These allegations concern the Mother’s assertions to the effect that the Father has acted inappropriately in terms of his methods of disciplining of the child. There is also the issue agitated by the Mother that the Father would act to return the child to the UAE if he had the opportunity to do so.  

32. Thus the issue resolved into one of balancing the s 60CC best interests considerations in terms of the Father spending time with the child pending the trial and the Mother’s untested allegations in terms of any alleged risk. I note that the risk here identified is not simply whether the Father has or would act inappropriately in terms of discipline but also the contentions advanced by the Mother that the Father might act to depart Australia with the child and return to the UAE.

33. The Court raised with the parties the prospect of time occurring, not at a contact centre as advanced in the Mother’s proposed orders, but via the supervision that could be provided by a commercial agency. Moreover, discussion occurred as to the place or places at which such time could occur.

34. In the event the Mother was agreeable to supervision occurring in the form of a commercial agency providing an agent to supervise the Father’s time and the Father also agreed to secure accommodation at a specified address in Town B near to the Mother’s and the child’s current address to enable orders to be formulated by reference to the Father’s time at his nominated address and at the local beach and public areas near to that address.

35. In terms of time, resonating with the s 60CC considerations is the child’s young age and the fact that she has not spent any significant time out of the Mother’s care. Fundamentally, on an interim hearing where risk allegations of the kind advanced by the Mother cannot be satisfactorily tested and resolved in such a circumscribed process the Court must necessarily act conservatively in balancing the statutory considerations. That means the Court must allow for the prospect that such allegations are valid and can be made out on a proper examination of the evidence at a trial.

36. On that basis it was resolved by the Court that a proper balance in terms of s 60CC considerations was struck, having regard to the short period under discussion, if the child spent time with the Father on each alternate day, pending the further hearing and determination of the matter, with supervision of the kind referred to.

37. It is for these reasons that the orders made on 26 August 2013 were resolved by the Court as the orders best meeting the child’s best interests given the many areas of disputed fact which could not be resolved on the interim hearing and given the relatively short period until the matter is to be revisited at a trial of the competing applications.

38. Thus, for the record, it cannot be inferred that the making of orders in lieu of accepting only undertakings of the Father involves any determination by the Court to the effect that the Father would act in breach of the undertakings he was prepared to offer. In particular, no inference should be drawn of any conclusion by the Court to the effect that the Father would breach his offered undertakings by removing the child from the jurisdiction of the Commonwealth of Australia. Moreover, given that the Court is not in a position on an interim hearing to resolve disputed issues of fact, it is not to be inferred that any conclusions have been reached as to the issue of the Mother’s residency in the UAE or the other issues of disputed fact concerning in particular the allegations of family violence or whether the Father poses any unacceptable risk to the child. These are issues for the trial.

39. Moreover, as is recorded above, the Father reserves the position of arguing at the trial of these proceedings that a summary order for return to the UAE ought be made for parenting or custody issues to be determined in that forum.

1. The orders as framed are concluded to be in the child’s best interests pending trial given in particular the relatively short period between now and trial; the need to preserve the child’s relationships with both parents in that period; the allegations of potential risk to the child’s welfare that cannot be tested until trial; and the need to preserve stability of the child’s care arrangements and circumstances pending the trial.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 11 September 2013.

Associate:

Date: 11 September 2013