Dagher and Hamade

FAMILY COURT OF AUSTRALIA

DAGHER & HAMADE

[2017] FamCA 38

FAMILY LAW – CHILDREN – Mother and father are Iraqi citizens who parented twins whilst the father was studying in Australia – the mother is now separated from the father and she has administratively applied for protection visas for herself and the children and seeks orders under the Family Law Act 1975 (Cth) that the children live with her and she have sole parental responsibility – the father is studying in Australia and wishes to return to Iraq and is required to return to Iraq in late 2017 – in the absence of the mother returning to Iraq with him he seeks orders that the children live with him in Iraq – allegations of violence and coercive and controlling behaviour – Best interest of children – Order that children live with the mother – Order that mother have sole parental responsibility for the children – Order that children spend time with the father.

FAMILY LAW – CHILDREN – Issue of passport – Orders made for the issue of passports for the children – Orders that children’s passports be lodged with the Court’s Registry.

FAMILY LAW – PRACTICE AND PROCEDURE – Orders that children be placed on Airport Watch List until the age of 18 or as is otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth) or agreed in writing by both parents.

Family Law Act 1975 (Cth) s 60CC

A v A: Relocation Approach (2000) FLC 93-035

APPLICANT:

Mr Dagher

RESPONDENT:

Ms Hamade

FILE NUMBER:

HBC

2016

DATE DELIVERED:

1 February 2017

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

28, 29, 30 November, 1, 12 and 14 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms White

SOLICITOR FOR THE APPLICANT:

Fitzgerald & Browne

COUNSEL FOR THE RESPONDENT:

Mrs Mooney

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Service

Tasmania

Orders

All previous parenting orders in relation to A and B (both born … 2014) (‘the children’) are discharged as and from that date of these orders.
Ms Hamade (‘the mother’) have sole parental responsibility the children.
If it is reasonably practicable and available to her the mother shall, prior to making a significant decision in terms of parental responsibility:-
a.use her best endeavours to advise Mr Dagher (‘the father’) in writing (including via email, text, messaging and the like) of the decision intended to be made and the reasons for such decision;
b.seek the father’s views in relation to that decision;
c.by reference to the best interests of the children, consider any timely response made by the father to the making any such decision; and
d.advise the father in writing as soon as reasonably practicable of the ultimate decision.
The children shall live with the mother.
The children spend time with the father as is agreed in writing by the parties and in the event that parties are unable to agree, for the period of time that the father is living in Australia in 2017, the children shall spend unsupervised time with the father as follows:-
a.each Wednesday from 10.00am until 1.00pm;
b.each Friday from 10.00am until 1.00pm;
c.one other day per week reasonably nominated by the mother from 10.00am until 1.00pm; and
d.changeover to take place at Coles Supermarket located in the X Shopping Centre.
The parties shall exchange mobile telephone numbers and thereafter keep the other party informed of mobile telephone numbers to enable the passing of text and voice messages.
When the father returns to Iraq each parent shall do all acts and things necessary to enable and cause the children to communicate with the father by audio visual communication such as Skype, Facetime or the like at least twice per week at times reasonably nominated by the mother having regard to the needs of the children and also the working hours and sleeping times of the father having regard to the time differences between Australia and Iraq.
The father and mother shall do all acts and things required of them to make application for passports for the children and comply with any requests of the issuing entity in order to ensure successful issuance of the said passports, including that:-
a.The father shall provide the issuing entity with an irrevocable authority and direction to send the new passports direct to the Registrar of Hobart Registry of the Family Court of Australia; and
b.In the event the passports are issued directly to the father or the mother, such parent shall forthwith lodge them with the Hobart Registry of the Family Court of Australia.
The Registrar of the Family Court of Australia be entitled to release the said passports:-
a.to the mother’s legal representative for her Visa application upon receipt of a letter from that lawyer requesting the said passports; or
b.to another person or entity pursuant to Court order made by consent or otherwise.
The Australian Federal Police are requested to place or retain the names of A and B (both born … 2014) on the Airport Watch List to be in force at all points of arrival and departure within the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until such time as each of the children attain the age of eighteen (18) years or such earlier time as is ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).
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.

IT IS NOTED

The text and voice messages are only limited to parenting matters including providing information about the well-being of the children.
All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dagher & Hamade has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 15 of 2016

Mr Dagher

Applicant

And

Ms Hamade

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The children, A and B (collectively ‘the children), are twins born in 2014, they are the children of Mr Dagher (‘the father’) and Ms Hamade (‘the mother’). These parents are engaged in parenting proceedings, which were conducted over six days and involved a large number of witnesses.
On the surface there seemed to be complexity, yet the underlying fundamentals are relatively simple. It is a question of whether the children continue to remain in the primary care of their mother or have that primary residence changed, and live with their father.
The complexity is that the parents are Iraqi citizens and each parent wishes to live in different States. The mother in Australia and the father in Iraq. The parties have separated and the mother has applied for permission for the children and her to live in permanently Australia. The father wished to return to Iraq with the children.
The father is employed as an academic professional at a University at City Z in Iraq and he was offered assistance to undertake post-graduate study in Australia. He was granted a Student (sub-class 574) Visa and came to Australia in late June 2012 and commenced study. He completes his PhD in early 2017 and is to return to Iraq later in 2017. It is his desire to return to City Z and he is required to do so, under the terms of the Visa and under terms of a scholarship contract.
The mother first travelled to Australia in September 2012 pursuant to an associated limited spousal visa and has lived in Hobart since that time. As at 2012, the parties had been married for many years but there were no children of their relationship.
Whilst in Australia, the parties made use of a fertility clinic and the mother fell pregnant with triplets. Sadly, their daughter C was born prematurely in 2014 and died shortly after her birth, the remaining children were born two months later. Counsel for each of the parties contended that, as a matter of law, the children are Iraqi citizens as their parents are Iraqi citizens and as such take their parent’s nationality. The children are not Australian citizens by birth.[1]
[1] Australian Citizenship Act 2007 (Cth) – section 12.
In June 2015, the parties separated with the mother alleging family violence, including coercive and controlling behaviour. A police family violence order was made shortly after separation.
The father’s visa expires in late 2017 and he is required to return to Iraq. It is his wish that he and the mother reconcile and return to Iraq together and continue as a married couple and as parents for the children.
Alternatively, he seeks orders that the children return to Iraq and that the children be permitted to live in that country with either the mother (if she returns) or in the absence of her, returning to live him.
The mother wishes to remain in Australia and has submitted an application for a visa to allow the children and her to remain permanently in Australia. In the meantime she has been issued with a bridging visa for the period during which that application is being processed.
This proceeding under the Family Law Act 1975 (Cth) (‘the Act’) has been conducted in the shadow of the mother’s visa applications and the possible review applications and other administrative and legal proceedings that could follow unsuccessful administrative applications. If the mother and children’s visa applications are ultimately declined, the mother and the children will be deported to Iraq. This visa process may take a number of years.
This Court is concerned that these proceedings ought not be a stalking horse for that determination. Counsel for the mother was careful and highly professional in her presentation of the mother’s case to avoid such a conclusion.
The mother seeks orders that she continue to be the primary carer of the children pending the visa determination and that such parenting orders as this Court makes should continue after that determination, whether in Australia or Iraq. It was an agreed fact that any orders made by this Court would be nugatory in Iraq.
There are a number of possible outcomes, which I have considered.
I could make an order that the children continue to live in the primary care of the mother and permit her to remain in Australia pending the visa determinations and continuing to live in Australia if the visa is granted. This would mean that the children would have little or no meaningful contact with their father.
I could make an order changing the primary carer of the children to the father. Axiomatically, this would mean that the children and father would return to Iraq in the immediate future given the father’s visa status combined with his obligations and desire to return to Iraq. Consequently, the mother could either abandon her visa application or return to Iraq or alternatively she may be able to remain in Australia pending the outcome of her then sole visa application.
Any parenting order made by this Court would have no legal effect in Iraq. Therefore, the only aspects I can consider are those relating to the children remaining in Australia either long term if the mother’s visa application is successful, or short to medium term if it is not.
The mother asserts that she has been the subject of violence, coercive, and controlling behaviour by the father, which is denied.
It was submitted by counsel for the mother that:-
their relationship was, and is, characterised by cultural and other expectations of behaviour as set out below, which disadvantage the mother.
She says that the father is older, educated and has an earning capacity. His family is well connected and the mother says that her life would be in danger should she return to Iraq. This is particularly the case, she asserts, in that the father has told family members and third parties that the mother has been unfaithful which, in the context of Iraqi culture, threatens her life and, at best, would mean that she would not retain custody of the children.
Further, she submits that her case is that Iraq is unstable and an inherently dangerous place for a divorced Muslim woman to bring up twins, particularly twins with special needs.
It is in this context that the parenting arrangements for these children need to be determined.

THE ISSUES

The issues being:-
(a)who should have parental responsibility;
(b)where the children should reside;
(c)what time the children should spend with each parent; and
(d)whether these children should return to Iraq with or without the mother, pending the outcome of the immigration applications.

BACKGROUND

The father is aged 39 years and is employed as an academic professional.
The mother is aged 28 and is the primary carer for the children.
In 2004 the parties were formally married in Iraq and in February 2004 the mother moved into the home of the father’s parents in City Z, Iraq. At that time the mother was aged 15 years.
On 30 June 2012 the father moved to Australia for study and has resided lawfully in Australia since that time. The mother moved to Australia in September 2012. The parties have lived at various addresses in Hobart Tasmania for over four years.
In 2013 the mother became pregnant with triplets and the children were born prematurely. They remained in hospital one until August 2014 and the other until September 2014.
The mother gave evidence, which I accept, that in January 2015 (prior to separation) she contacted Family Violence Counselling and Support Service and sought advice. She acted on that advice in terms of warning the father about what she considered his abusive conduct and attended at a police station on about 1 June 2015, but did not make statement to police at that time.
On 10 June 2015 the mother attended a police station and made statement in support of a Police Family Violence order. That administrative order was made and served upon the father the same day.
In addition, on that day, the parties separated and the mother and children lived in women’s shelters for the following 11 months.
These proceedings were commenced by the father in the Federal Circuit Court on 11 January 2016. As such the father has consented and adopted the jurisdiction of courts exercising jurisdiction pursuant to the Act.
A Family Violence Order was made on 3 March 2016, varied on 18 March 2016 and expired on 9 June 2016.
On 4 March 2016 and interim parenting order was made in the Federal Circuit Court and the children commenced spending supervised time with the father pursuant to that order in April 2016.
In September 2016 the children started spending time with father supervised by Y Service.
This hearing commenced on 28 November 2016 and on the parties agreed to an interim order regarding the father spending unsupervised time with the children in the following terms:-
1.Orders made in the Federal Circuit Court on 4 March 2016 be varied to provide that order 3 is vacated and in its place [the children] (‘the children’) spend unsupervised time with the father as follows:-
(a)     each Wednesday from 10.00am until 1.00pm;
(b)    each Friday from 10.00am until 1.00pm; and
(c)    changeover to take place at Coles Supermarket [at X Shopping Cenre].
2.Within the next six (6) days, each of the parties shall exchange mobile telephone numbers and thereafter keep the other party informed of mobile telephone numbers to enable the passing of text and voice messages.
3.The children shall spend time with the father at other times as is agreed, in writing, between the parties.
4.Pursuant to s 65DA(2) and s 62B, 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.
IT IS NOTED
5.The text and voice messages are only limited to parenting matters including providing information about the well-being of the children.
In these reasons any statement of facts shall be regarded as a finding of facts unless the contrary is clear from the context.

THE LAW

The provisions of the Act that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out 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 if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)      each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)    to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)      the capacity of:
(i)      each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)      the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)      any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)     any other fact or circumstance that the court thinks is relevant.

THE LAW AS TO RELOCATION

The principles emanating from B v B Family Law Reform Act 1995 (1997) FLC 92-755, A v A: Relocation Approach (2000) FLC 93-035 and the High Court in U v U (2002) FLC 93-112 are that relocation cases are not a special category of parenting cases and the same statutory path ought to be followed. Further in A v A: Relocation Approach (supra) the Full Court said the following matters need to be considered when dealing with such applications as set out in paragraph above:-
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ''permitted''.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.
·The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1.    A court will identify the relevant competing proposals;
2.    For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;
·As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.    On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
This outline, of course, must be considered in reference back to the best interests of the child.

WITNESSES

The father

The father relied on the evidence contained in his affidavit sworn 29 July 2016 and filed 1 August 2016.[2] That affidavit was read into evidence subject to weight and subject to some minor corrections regarding paragraphs 13 and 105.
[2] Trial affidavit.
Since filing the affidavit and giving evidence the father had been seeing the children each week at the Children’s Contact Centre for one hour, but that was reduced to one hour per fortnight and he has been using a nanny service. On 1 December 2016 consent orders were made which enabled the father and children to spend unsupervised time together.
The unsupervised time has presumably continued over the time reasons were reserved.
The father provided evidence of some internal locks in the apartment where the parties lived.[3] This was to the effect that the evidence provided by the mother of a locked bathroom door was unreliable and that the Court ought to prefer his denial, set out in paragraph 62 (f) of his trial affidavit. This evidence of the locks showed the door could be locked from the inside and that lock could be opened from the outside. As such the photograph supported the assertions of the mother as to the events set by her in paragraphs 244 to 253 of her trial affidavit, and which evidence of the mother, I accept on balance as reliable.
[3] Exhibit F5.
In August 2016 the father travelled to Iraq for about ten days returning on 8 September 2016.
In relation to the expert evidence of Dr F, the father said that there are few problems for women in Iraq as widowed and divorced women are able to undertake study for Masters and Doctoral degrees and are able to undertake education.
The father says the majority of single women who sought education did so in Baghdad, but in recent times that education hub has shifted to City Z. His evidence was that women were safe in Iraq as the government secured their rights and that there were many check points. I have treated this evidence with some scepticism, given the expert evidence before me.
The father said there was no restriction in movement and said his sister was divorced from her husband and that she lived by herself for a while and is now remarried and living with her new husband in Baghdad. He asserted there was no discrimination based on gender in Iraq. I have treated this evidence with some scepticism, given the expert evidence before me.
As to the roles of the clans, he said that they do not have a greater role in law enforcement, but they do assist in solving family problems.
As to honour killings, the father said he had never heard of honour killings in Iraq. When pressed the father said that he had not heard of women being killed by the clans. I have treated this evidence with some scepticism, given the expert evidence before me.
In regard to marriage breakdown, the father said that a friend of his had suffered a marriage breakdown and his friend’s former wife had custody of their children and that his friend paid maintenance (there does not seem to be a social service safety net in Iraq as is available in Australia). The friend’s wife lives with her family and his friend sees their children.
The father made it clear that he wants to take the children back to Iraq, preferably in the company of the mother with their marriage and relationship restored. If the mother is unwilling or unable to return to Iraq then he would still want the children to return with him. They would live with him at his parents’ home with the help of his mother and sisters. He said all of the family will help them and do what is best for the children.
The father painted a picture of Iraq which was different to that provided by the mother and as contained in the expert report of Dr F. The father denied that threats had been made to the mother. He conceded that when the mother left he terminated the SIM card in her mobile phone, but denied that he deactivated her Facebook account.
The father said the mother is not at risk of being killed by a member of his family and he says that as far as he is aware his family have not made threats to the mother or her family.
The father denied the allegation of slapping the mother across the face when they were in Iraq.
I observed the father in the witness box for some time and carefully listened to his response to questions asked in cross examination. To their credit both counsel adopted a thoughtful and non-aggressive method of cross examination, which did not appear to add to the existing conflict between the parties. As such I had time to see the demeanour of the father. He denials of even knowledge of honour killings and of any form of coercive and controlling behaviour and the like reflected the overall reliability of his evidence. From my assessment of his evidence he tried from time to time to paint a picture which was not based on fact. His evidence was not entirely impeached but I have treated it with caution and scepticism.
The father was described by the family consultant as ‘pleasant and polite in his manner’; that is how he came across in the Court.
A number of his answers to which I have referred elsewhere in these reasons painted unrealistic pictures of Iraq and as to his control of the mother. His evidence in relation to the provision of clothes, food and the like and the limitation of money and the restrictions on electricity was, at times, vague and non-responsive.
His evidence was not impeached, but I will consider it with some degree of caution.

The mother

The mother gave evidence in terms of her affidavits filed 11 August 2016[4] and filed 20 September 2016.
[4] Trial affidavit.
Annexed to her second affidavit were affidavits of her family, namely SS and AA. These annexed affidavits were not able to have been executed in time for the hearing. I treated the mother’s evidence as detailing her unsuccessful efforts to have available the evidence from these member of her family, I did not have regard to or read the assertion of facts contained in those annexed affidavits.
The mother presented as a polite and softly spoken, but determined witness.
To the credit of the father and his counsel the cross-examination of the mother was sensitive, thoughtful and incisive.
In relation to the mother’s trial affidavits there were some amendments to paragraphs 244 and 332 and 333. Paragraphs 475 and 476 were not read.
The mother was shown the case outline prepared by her legal representatives and confirmed the facts as set out in that document.[5]
[5] Exhibit M1.
In relation to the father’s evidence about the power of clans, she said that they were very strong in Iraq and were violent. She gave some evidence of honour killings and in relation to matters set out in her affidavit.
In terms of her family she last spoke to her sister two or three days before she gave evidence. She has not spoken to her father, brother and sister’s husband for about two months. She gave some evidence of difficulties in relation to medical treatment in Iraq in terms of her sister NN (different to the father’s family member ‘NN’) who had three daughters who died within three months of their births. She also gave evidence in terms of the wife of her brother AA, who gave birth to twins; the family was required to leave hospital and the twins died a few days later.
She was cross-examined in relation to the partial medical records tendered[6] as to the father’s involvement with the children. Given the evidence of the parents I determine that the father was more engaged in preparing some meals and assisting with the children than was asserted by the mother. However, it was not to the extent asserted by the father.
[6] Exhibit F3.
At times both the mother and the father exaggerated in terms of their evidence.
The mother gave evidence that each of the children spent between three to four months in hospital after their birth and that she was the primary carer of them over that time. I accept that evidence.

The mother gave evidence about seeking a protection visa after getting advice in June 2016 and looking for funding for the costs of that visa through the ‘Go Fund Me’ website.
She gave evidence about what she had heard about the death of NN (different NN to her sister) by way of hearsay allegations that she was killed because she ended a marriage. This alleged event was not something the father had knowledge about, however, his mother had some knowledge of the death of NN and her mother or daughter but not the details. For the purpose of this determination I have given the mother’s evidence about this matter, no weight.
I have endeavoured to assess the evidence on an issue by issue basis having regard to other either supportive or undermining evidence. For example, the cross-examination of the mother in relation to the medical records.
I will treat her evidence as I treat the father’s evidence: that is, there is a degree of self-serving and a degree of exaggeration. I will consider each aspect on an issue by issue basis.

The paternal grandfather, Mr D

Mr D is the paternal grandfather of the children and he provided evidence in terms of his affidavit filed 1 August 2016. That affidavit was read into evidence. He gave evidence via video-link from City Z in Iraq and through an interpreter. It was not the easiest of processes. I am satisfied that he provided evidence supportive his son and I treat his evidence in that light.
His evidence was tainted as he presented as a partisan supporter to assist his son bring about the about the return of the children to Iraq. I am not convinced that his evidence was entirely frank.

The paternal grandmother, Ms M

Ms M is the paternal grandmother of the children and gave evidence in terms of her affidavit filed 1 August 2016, which was read into evidence. She gave evidence via video-link from City Z in Iraq and through an interpreter. It was likewise not the easiest of processes. She was quite supportive of her son and said that if the children were returned without their mother that she, her daughters and family would assist in the upbringing of the children.
Troublingly, she did not understand the meaning of autism or developmental delay.
She conceded that the mother left the father on at least one occasion prior to their move to Australia, but asserted she returned the mother to the father in a friendly way.
She denied that her daughter had ever cut her wrists and said she did not know anything about her son-in-law being shot. She conceded that a relative was killed in a car bomb attack in Baghdad some years before and after some pressing conceded that one of her daughter’s present husband’s first wife had been killed, but she did not know the circumstances of that death.
She said she knew of no pressure being put on the mother’s family to induce her to return to Iraq.
In many ways she was a grandmother who, not unexpectedly, wanted to see her son and grandchildren return to Iraq. I will treat her evidence with caution but it was not wholly impeached.

Ms V

Ms V is a university lecturer and has known the father since he came to Tasmania in 2012 as a PhD student. She gave evidence in terms of her affidavit filed 1 August 2016.
She and her husband are the academic supervisors of the father and have a close relationship with him. They socialise together and Ms V had endeavoured to assist the parties and their children whilst they are in Tasmania.
Ms V said she visited the mother on occasions in hospital and when she was there she often saw the father.
She confirmed that the father will finish his PhD by the end of January 2017 and has been working hard on obtaining that qualification.
Some of her evidence is based on information provided to her by the father. At times her evidence was in the form of a character reference, rather than objective assessment.
Ms V was aware that there have been some discussions about the family remaining in Australia. She gave evidence that she had seen the father a number of times in the street with the boys, although, she later conceded that may have been limited to one occasion.
Her evidence is that the mother was at the time struggling emotionally in caring for the children. Given their circumstances of this family, and the needs of the children, that observation is likely accurate and is unsurprising. At least on one occasion this witness assisted in the care of the children for a short while.
Ms V is a friend of the father and is supportive of him. I accept that she is endeavouring to tell the truth, but that is coloured by her close relationship with him and her support of him. There was some cross-examination about a conversation with the mother about alleged violence in early June 2015. I make no criticism of this witness nor of the mother, it was simply this witness seeing the mother distressed and a question was asked which could have been construed either as querying if the mother had been hit in the past or whether she had been hit that day.
The semantics may in this case be important given that the mother’s first language is not English.

Mr E

Mr E is a physician employed in City Z. He provided evidence in terms of his affidavit filed 4 October 2016, which was read into evidence. His qualifications were not challenged.
He confirmed the health assessment provided by Ms G, physiotherapist, in her report dated 26 July 2016, which is attached to Mr E’s affidavit.
I accept his evidence.

Dr H

Dr H is an orthopaedic surgeon in a private hospital in City Z. He swore an affidavit on 3 October 2016, which was filed on the 4 October 2016. He had read the report of Ms G. He says that club feet are a congenital abnormality and can be treated in City Z. He says has been involved in a lot of cases with excellent post-operative results. His evidence was admitted without controversy.

Ms K

Ms K is a post-doctoral student at the university and has known the father for two years. She provided evidence in her affidavit filed 1 August 2016.
She says she has seen the father walking with the children on one occasion. She says that from her assessment of him he is respectful and caring. That affidavit was admitted without cross examination and is in many ways a character reference.

Ms O

Ms O is a psychologist who gave evidence in terms of her affidavit filed 21 November 2016. That affidavit was read into evidence and there was no challenge to her qualifications. Annexed to her affidavit were reports in relation to each of the children.
The child A was seen in August 2016 for a developmental assessment given that the mother was concerned about his developmental delays and that he could be on the autism spectrum. Ms O summarised by saying that the child exhibited many features typical in autism spectrum disorders and recommended a formal autism assessment. The testing showed generally low adaptive skills and communication in the percentile under 1 (low). Similarly, with the other tests.
In relation to the child B, Ms O saw him on the same day and made a similar diagnosis. She also made recommendations as to treatment.
There was no serious challenge to her evidence except in terms of the concerns about the possibility of features typical in autism spectrum disorder where the father’s counsel questioned whether they could be associated with twins and/or bilingual households. Ms O said that given that the children were in the first percentile the most likely outcome was that set out in her reports.
I accept her evidence.

Ms J

Ms J is a friend of the mother. She provided evidence in accordance with her affidavit filed 23 February 2016 and says she maintains contact with the mother.
She met the mother through the handcraft classes in Suburb N and had visited her home and met the father. Until June 2015 Ms J visited once a week and after separation visited the mother in her then accommodation.
She observed the father’s interaction with the children and was somewhat critical of it, which in many ways reflected more on his lack of knowledge as a parent rather than poor parenting. That evidence assists me in concluding that the mother was the primary care-giver for the children and that the father wished to be involved in their care having regard to his other responsibility of completing his PhD thesis.
Ms J gave evidence of the father accusing the mother of using the washing machine and electric heating and the stove, and that the mother hand washed clothes on one occasion. She gave evidence of the mother coming outside with her and asserting that the father said to be quiet so he could continue with his study and the mother making a complaint about the circumstance.
She also gave evidence of the father’s desire to have the mother and the children return to Iraq.
Her evidence was not shaken in cross-examination and I am satisfied that it is partisan but generally reliable.

Ms P

Ms P gave evidence in terms of her affidavit filed 20 September 2016. That affidavit was read into evidence. Ms P works at a business in Suburb N and conducts handcraft classes. The mother commenced attending the handcraft classes in about June 2014.
These classes were initially held on Monday evenings between 6pm and 8pm. Initially the father came to these classes with the mother, then later the father would bring the mother to the shop and meet her at the shop at the end of the class.
At some stage Ms P ceased evening classes and the mother would come to morning classes. Ms P provided objective evidence, which I accept, that the mother, at times, did not have a key to her house. Ms P attended the children’s first birthday and observed the father being annoyed or insistent with the mother in terms of making coffee and tea for the fifty or so guests at that function.
At paragraph 23 and onwards of her affidavit she provides some contextual evidence that the mother complained of being hit.
When the mother separated from the father Ms P helped her move out and returned the house key to the father.
I accept that the mother and Ms P are friends and that Ms P is allied with the mother. However, her evidence was not seriously shaken in cross-examination and I am satisfied that it is generally reliable.

Ms Q

Ms Q gave evidence in terms of her affidavit filed 20 September 2016. Ms Q is a registered nurse at the XX Hospital and met the mother in 2014 after the children were born prematurely.
For the period that the children were in hospital, some three to four months, Ms Q was working six to seven shifts per fortnight and saw the mother and children almost every shift. She saw the father on about three occasions per fortnight.
Over that period of time the mother and Ms Q became friends and after the children were discharged from hospital she visited the mother at her home on four occasions.
On 20 May 2015 she visited the mother at home and she observed bruising to one of her upper arms. She said:-
7.The bruising consisted of an oblong shaped bruise on the inner side of the arm and a number of smaller bruises on the opposite side of her arm.
This was clearly intended to display that of a thumb and fingers.
Ms Q said to the mother:-
Really!
The mother’s response was to not tell her how she sustained the bruising, but looked upset and averted her eyes.
Whilst she is a friend of the mother her evidence was frank, clear and I accept to be generally reliable and provides some objective support of the mother’s complaints about family violence.

Ms U

Ms U is a Red Cross senior caseworker who provided evidence contained in her affidavit filed 20 September 2016.
This affidavit was read into evidence unchallenged. Ms U travelled with the mother to the Children’s Contact Centre and gave evidence that the children are always ready on time, are dressed immaculately and clean and that the mother engages lovingly and appropriately with the children.
I accept her evidence and it supports the contention that the mother is a good and responsible parent for these children.

Ms R

Ms R gave evidence in terms of her affidavit filed 30 June 2016. That affidavit was read into evidence. Ms R is a newly admitted legal practitioner who has been working as a solicitor and migration agent at Refugee Legal in Collingwood Victoria since 2015. She gave evidence as to the process in terms of the mother’s application for a protection visa.
The mother and children have been granted a bridging visa which comes into effect on the expiry of the student visa. She provided information as to the time frames and suggests that it would be one to two years before they receive a decision from the Department and then there is the appeals process. I accept her evidence as being credible and reliable.

Mr F

Mr F is an Iraqi lawyer who lives in South Australia. He is a different person to Dr F (the expert) and there was no evidence that they were in any way related. This witness met the mother in 2012 in Baghdad when they were obtaining blood tests for visas to travel to Australia. He provided evidence in terms of his affidavit filed 26 February 2016, filed at the commencement of these proceedings.
He had previously spoken to the father and after separation he said the father called him almost every day for a month seeking advice. He said the father told him that the mother had shamed him and behaved unethically in going to the police.
He said that the father had made enquiries about cancelling the mother’s visa and sending her back to Iraq and that when back in Iraq his intention was that the family would take the children and kill the mother.
He went on to say that the father had gained access to the mother’s social media accounts and had been in contact with this witness’s daughter.
The father in his evidence disputed these assertions[7] and gave a different explanation. The father denied that he threatened to kill the mother saying that he is not a violent person and that he would not and did not say anything such as that. The father had denied having access to the mother’s social media account.
[7] Paragraph 124 to 134.
Mr F was cross-examined in relation to owning houses in which he offered to let the mother live. He said he did not own houses and lived in a housing commission house in South Australia.
It was put to him that he had fabricated this material to assist the mother in her visa application. He denied that assertion.
He gave evidence through an interpreter and listened carefully to the questions. His evidence did not appear to impeached.

Ms W

Ms W is the wife of Mr F (as distinct from the expert - Dr F). She provided evidence contained in her affidavit filed 26 February 2016 which was read into evidence. She gave evidence through an interpreter.
She likewise met the mother in Baghdad in 2012 and says that her husband, Mr F, had been in regular contact with the father since they had been in Australia. Prior to June 2015 they contacted each other once per fortnight.
She gave evidence consistent with that of Mr F, including that the father asserted that ‘the mother is a ‘whore’ and that her children will bring nothing but shame to [the father’s] family’.[8]
[8] At paragraph 10 of her affidavit filed 26 February 2016.
Ms W is a very excitable woman and in her answers seemed to expand her evidence. She expanded a number of answers into non-responsive answers.
The father responded to her affidavit in his affidavit at paragraphs 135 through to 137. He denied the assertions made by her.
Because of some level of exaggeration some evidence appeared to have levels of rhetoric to them. I am concerned as to the quality of her evidence, and the reliability of her evidence.

Dr F

Dr F provided written evidence in terms of his affidavit sworn in London on 24 November 2016 and filed in court on 28 November 2016. Dr F’s affidavit and report was read into evidence with the exception of paragraphs 325 to 369.[9]
[9] Pages 57 to 65.
Given the late service of this report the date for conclusion of the proceedings was put back about two weeks so that the father could consider if he needed to seek and file evidence in reply, and/or have his counsel prepare the cross examination of the expert. Dr F subsequently gave evidence electronically from London, England.
Dr F is a British citizen and asserts that he has no political affiliation. He claims expertise as a Middle East Specialist as he has been working as an expert witness since 2000 focusing on issues across the Middle East and North Africa as well as Afghanistan and Iraq.
He says that he is fluent in Kurdish Sorani and Arabic, and is familiar with the different Kurdish and Arabic dialects. He has a good knowledge of Farsi (Persian) and a working knowledge of Pashto and Dari.
He provided a detailed analysis of his background in his report.[10] His qualifications were challenged by the husband in terms of his close association with the Kurdish part of Iraq, criticism of him in cases in the United Kingdom, some many years ago, and his lack of actual knowledge of the areas around Baghdad and City Z.
[10] Affidavit Dr F pages 9 to 12.
Dr F was instructed as an expert by the Women’s Legal Service Tasmania, who was acting for the mother. He was instructed late in the proceedings as the father had not provided similar expert evidence nor had either party sought the appointment of a single expert.
Funding was clearly an issue for each of the parties in relation to this.
Dr F gave evidence that Iraq is currently, and has been for several years, experiencing high levels of violence, although this is not a country wide phenomenon. He says that in recent months the security situation in Baghdad has deteriorated and that Baghdad remained one of the main centres of violence in Iraq and has done so since 2003. This violence included car bombs, improvised explosive devices and sticky bombs, because of their capacity to cause mass casualties.
Counsel for the father challenged Dr F’s qualifications and the underlying factual basis of his report. The history provided to Dr F was that provided by the mother and was not provided by the father. As such there was some justifiable criticism that it was at some levels based on a partisan outline of the facts.
Dr F agreed that about 20 per cent of Iraqi women are married under the age of 18 years, although there are no figures in relation to women married at age 14 or 15 years.
He said that his last trip to Iraq was in February 2014 and that he had not been to City Z since the late 1970s. Subsequent to that time his visits have been primarily to the Kurdish areas of Iraq after the 2003 war.
He was cross-examined in relation to some aspects of the law in Iraq and made appropriate concessions. He did not concede that the judiciary is generally working well in Iraq.
Iraq has a population of about 36 million people of whom six to eight million live in Baghdad and about one million live in City Z, and the areas around it (Governance of about two million people). City Z is about 10 to 12 hours drive to City S and it is about five or six hours from Baghdad to City S by car.
He agreed that the southern part of Iraq is much less volatile than the northern and western parts of Iraq.
He made concessions that a number of his references related to difficulties in other parts of Iraq. He said, and I agree, it was clearly part of his report in any event.
It was put to Dr F that southern Iraq is a safe place. He said that it was not as unstable as other parts, but the whole country was not stable and he would not be convinced otherwise.
In cross-examination he was asked to compare it with Egypt and Morocco and said they were fair comparisons, whatever that may mean, given that no evidence was adduced as to the stability or otherwise of those particular countries.
In relation to Baghdad, the number of casualties was small in relation to population, but his evidence was that it still had an impact on the society. However, life goes on despite the problems.
Dr F was asked about some criticisms made of him in an English administrative case in 2007. He asserted that he endeavoured to give evidence objectively. There was evidence that in 2007 a tribunal rejected parts of Dr F’s reports. This and some other examples were treated by this Court in the context that Dr F gave evidence that he had issued thousands of reports, including 114 in recent times.

The evidence of Dr F was the subject of significant concern raised by counsel for the father. She said he failed to put in details such as population so that fair assessments can be made. She also asserted that there was some level of exaggeration in terms of some parts of his evidence and that the Court should be sceptical about it. It was asserted that he put in details of women killed in Iraq as a gender issue; when there was the number of women killed other than through gender issues (bombings and the like). It was submitted on behalf of the father there was some sensationalism and fear as in terms of issues that were some six to ten hours away from City Z. I reject that submission as Dr F made it clear that there were different security concerns in different parts of the country and that while he conceded that the southern area around City Z was more stable than the rest of the country, overall the country was unstable.
Some limitations arose in his report by reason of the terms of reference provided to him. I am satisfied that he provides generally sound evidence as to the conditions of the population in Iraq, notwithstanding that most of his direct contact has been through the northern Kurdish areas in recent times.
Dr F deposes that under the 1959 Personal Status Law, in the case of divorce, women are granted physical custody of children up to the age of ten during which time the father must pay child support.[11] Custody can be extended to the age of 15 if it is in the child’s interests and after that the child can chose his custodian. His evidence is that Article 57 in the Iraqi law favours the mother having preferential custody up to age 15, unless there are extraneous circumstances not permitting this.
[11] Ibid page 33.
He goes on to say that the law is based on justice and security as the two most essential pre-requisites. However, there is a vacuum in terms of security and power in Iraq and in those circumstances a judiciary cannot be independent and law cannot be enforced. He confirmed this evidence when pressed and further, he said the rights of women and their liberties are under question in Iraq.
Dr F said corruption is another major obstacle that impedes the rule of law and this corruption applies to executive and judicial arms of Government.
In addition there are issues in regard to tribes or clans as their power has reached substantial levels. He said that this must be considered particularly in terms of risk to a single woman. He says that most women in Iraq rely on their family or social networks, and women who do not appear to be in the presence of their families or their husbands are considered to be vulnerable to harassment and prejudice. I accept this evidence.
He said and was not seriously challenged that there are issues arising from the lack of social security, provision for services for autistic children, employment and accommodation. I accept his evidence as to social security.
Dr F concludes:-
239. [The mother] will be viewed with suspicion as a young single mother, were she to live alone in Iraq. It is also possible that she will be ostracised by members of the local community. The cultures in Iraq do not permit young women to live alone. Older women may live alone if they are widowed and have older children, namely sons, who would act as their Mahram.
240. In Iraq there is a considerable threat of harassment of young women like [the mother] who are vulnerable as a single woman and a mother. I do not believe it is feasible for [the mother] to support herself and her young child were she to relocate with the absence of her family and no social network or charities that can help her.
9.6 Conclusion
241. Should [the mother] relocate to Iraq, she would be relocating to a country where women depend on male figures, both for their protection from unwanted attention and to uphold one’s socio-economic status. Should [the mother] not be able to depend on her family members in Iraq, she may be at risk of harassment and discrimination.
…
Further in his report he set out the questions of honour killings in Iraq, including impunity for perpetrators. Given that this is more a matter for the immigration authorities, I make no particular finding in this regard. He concludes:-
374. Security to Iraq. Iraq remains unstable. On a weekly basis, hundreds of civilians and combatants (but as the figures indicate, predominately civilians) die, and many hundreds more are injured – not joining the fatality list through fortune. While violence and casualty tolls have subsided, and flowed, broadly speaking both have remained the same since early-2014, and levels are back to nearly where they were during the bloodletting of the 2005-07 civil war – and far from the relative quiet of 2009-11. However, the violence is largely isolated to certain areas. Baghdad, Ninewa, Anbar, Salahaddin, Kirkuk, Diyala, see the most regular violence; the southern provinces much less, and often of a seemingly quite different nature; while IKR sees hardly any at all – attacks there are in fact rare in their occurrence. Since the Iraqi and Kurdish forces launched the campaign to recapture Mosul from ISIS, the numbers of civilian casualties in the entire Ninewa governorate has soared.
375. Progress has been made by Iraqi Security Forces, allied Shia militias, Kurdish Peshmerga, supported by foreign air bombing, in pushing ISIS out of the territories it swiftly captured in mid-2014. Yet those forces have also been accused of abuses against civilian populations in recaptured areas, and there remains much work to do to remove ISIS from its strongholds in Ninewa and Anbar Provinces, prevent its access to other areas further afield – and to defend Iraqi civilians against other armed groups.
376. As ISIS continues to lose control of significant swaths of territory, the insurgent group has increased its bombings throughout Ninewa and the rest of Iraq. The group have also killed a number of civilians in defiance against the Iraqi and Kurdish forces that are closing in on the group. In October 2016, there were over 5000 civilian and combatant casualties while the security of areas that have generally recorded much lower levels of violence is jeopardised by the concentration of forces in Mosul and Ninewa.
377. …
378. Custody of children in Iraq. The Law favours the custody of children to the mother. However, there are many different non-state actors that influence the law and the policing of law. Further corruption within the legal system means that judges and those in power are bribed and this results in unfair trials and judicial orders.
379. Tribes and the Law in Iraq: The Iraqi people are resulting significantly more to tribal leaders for dispute resolutions. Although tribes have always had a strong influence and power in the Middle Eastern communities, their rise in power in Iraq in recent years has been a direct result of the collapse of power and control as well as the corruption of the State’s official services. The State is not merely losing power because of the security situation in Iraq, but they have been demonstrating themselves to be rather incompetent at containing the tribes.
380.…
382. Furthermore, there is no real social security protection; [the mother] is likely to encounter great socio-economic difficulties. Given the current financial crisis in both Iraq and the IKR, it is also very likely that [the mother] will also encounter difficulties in gaining employment and a stable source of income to support herself and her children if she were to relocate.
I am satisfied that his evidence is generally reliable and that he provided some useful information in terms of the determination I am making.

Mr I

Mr I is an Iman from Iraq. He provided evidence in his affidavit filed 14 September 2016 and that affidavit was read into evidence. He gave evidence via video-link from City Z in Iraq and through an interpreter. It was likewise not the easiest of processes.
Mr I has been an Iman for eight years and teaches at a religious school at a Hawza near City Z. He said that if it was alleged that the mother had been with another man as asserted those claims would not be accepted by wholly Islamic legislations and Iraqi law.
Mr I also said that the mother would not be treated as a bad woman given the approach of the holy Koran. He would have expected that she would be treated well and that she could re-marry and continue her life with another man after divorcing.
He went on to say that honour killings are neither justifiable nor allowed in holy Islamic legislations and community. When politely questioned by counsel for the mother he agreed that whilst not lawful honour killings do occur in Iraq and it happens in their community. He seemed also to concede that occasionally they were not punished at law.
Mr I was asked whether women occasionally kill themselves if they bring shame to the family and he conceded that could happen from time to time.
He said often disputes were settled through family and clan rather than police. He said this was done to find a solution and that men and women of both clans were included in the evidence gathering process.
His evidence was not generally contentious. Much of his evidence was more for the immigration applications.

Mr L

Mr L is a lawyer in City Z. He has a degree in law and has been a lawyer for 23 years. His affidavit filed 28 September 2016 was read into evidence. His qualifications were not challenged.
He gave evidence from City Z by video-link and through an interpreter in Australia.
He said life in Iraq is normal, especially in City Z. He said that the majority of children of divorced parents live good and normal lives in the light of education and maintenance.
Like Dr F, Mr L set out the provisions of article 57 of the Personal Status Law (1959) [Iraq]. This article provides;-
Article 57
1. The mother has the right of custody of the child and upbringing in the state of marriage. After separation, this right remains the same, if the son in custody is not harmed.
2. The custodian [the mother] should be an adult, stable and have the ability to bring up the child in custody and care of the child. The mother does not lose the right of custody when she re-married. In this case the court will decide on the right of custody of the mother or father in light of the interests of the child in custody.
3. If the custodian violates his or her obligations, the care of the child in custody and the cost of childcare will be assessed by the court. The cost of childcare will not be paid if the marriage continues or the mother relies on retrospective divorce.
4. The father should look after the child in upbringing and education until the age of ten. The court is authorised to extend the right of custody of the son until the age of fifteen. This is if it is proved the right decision by a special committee made up of members of the medical professional and unprofessional. The interests of the child are decided on this basis and the child will not only live with his or her custodian.
5. If the child in custody reaches fifteen years old, he has the right to choose to stay with any of his parents or any of their relatives until he reaches the age of eighteen, if the court sees that the child mature enough to make this choice.
6. The mother who loses the custody of the child has the right to regain the custody, if the child has been endangered by his or her career.
7. If the mother of the child loses one of the conditions of custody or in the event of her death, the right of custody will be transferred to the father, unless the interests of the child required opposite. In this case, the court will decide on who will have the right of custody by taking into account the interests of the child.
8. In the case of an absence of the conditions of custody met by the parents of the child, the court will hand over the right of custody to a safe custodian. The court is allowed to give the right of custody to a state nursery if it is available.
9. [is in two clauses:]
a) If the father of the child loses one of the conditions of the right of custody, the child will stay with the mother if she keeps the conditions of custody. The relatives from both the mother and father do not have the right to dispute custody until the child reaches the age of eighteen.
b) If the father dies, the child will stay with the mother and if she marries another man who is unknown to the child, this will be subject to the following conditions:
1.      The mother should keep the conditions of the custody.
2.      Convince the court that the child will not be harmed if he stays with her.
3.      The husband of the mother should pledge during the marriage contract to look after the child and not harm him.
c)If the husband of the mother breaks the pledge of paragraph B of number 3; this will be a reason to separate the child from the mother. [12]
[12] Sabah Sadiq Jaafer al-Anbari (2000) (in Arabic) The Amended Iraqi Personal Status Law of 1959, (Baghdad: al-Zaman Publishing House), Article 57
It is agreed by Dr F that it provides that children normally remain with the mother until they are at least 10 or probably 15 and that they should be supported by the father and they should be entitled to see the father, at least two times per month.
There are provisions, which enable the removal of children from mothers, although his evidence was that they generally remain with the mother.
In his affidavit he said that the father would be required to support the children and then went on to say that orders of the Family Court of Australia would not be registered under Iraqi law.
On cross-examination he disputed the assertion made by Dr F at paragraph 165 of his affidavit in relation to the rule of law and the rights of women and their liberties in Iraq.
Further, he said that whilst there was corruption in Iraq the judicial system was above the corruption.
His evidence was that he was the lawyer for the father’s family and had been retained by them. His evidence was clear and precise as one would expect from an experienced lawyer.

Ms BB

Ms BB provided evidence in terms of her affidavit filed 20 September 2016. She was a witness for the mother. She gave evidence from Japan.
She met the mother at the handcraft class and provided some objective support in terms of the mother’s assertion about the lifestyle in which she lived.
Ms BB was a regular visitor of the mother’s home and observed issues such as the washing and the father’s occasional anger.
She gave evidence of his controlling behaviour.
She was challenged in her cross-examination however, on balance I am satisfied that her account was frank. Her evidence was not seriously impeached.

Ms FF

Ms FF is an experienced family consultant employed by the Family Court. She gave evidence in accordance with the family report she had prepared.[13] There was no challenge to the family consultant’s qualifications. She recommended that:-
1.      … [the children] live with their mother in the country of her choice.
2.      … [the children] spend supervised time with their father.
3.      … the boys remain on the airport Watch list to prevent them from being removed from the Commonwealth of Australia without the consent of each parent.
[13] Exhibit M3
She was vigorously cross-examined in relation to her recommendations and analysis and in particular paragraph 54 to 56 which provide:-
54.    [The children] have a close relationship with their mother given that she has been their primary carer. If [the children] were to be removed from their mother’s primary care, the boys would feel abandoned by her and have no understanding about why this had occurred. They would be confused and experience significant feelings of grief should they be separated from her. This experience could have a long term negative impact on the boys’ ability to form trusting relationships, including as adults.
55.    Should the boys remain living in Australia and their father return to live in Iraq, there does not appear to be any feasible way that the children could maintain a meaningful relationship with their father. [The mother] believes she could support the boys to have Skype communication; however this would be complicated by the boys’ speech delays and her estrangement from [the father] and his family. [The mother] would need to be significantly involved in the Skype calls; if she has been a victim of domestic violence she may be further traumatised or further abused by members of the paternal family during calls. Therefore if [the mother] remains living in Australia and [the father] lives in Iraq, the children’s relationship with their absent parent is likely to be significantly compromised or non-existent.
56.    The boys presented as being able to readily form trusting relationships with other caring adults. This capacity would potentially reduce any negative impact on the children of being separated from their mother but as noted above there have been no concerns reported about the mother’s parenting ability. Therefore, it is suggested that the court would need to determine that [the father] and his family members are likely to be significantly better able to meet the children’s needs in Iraq, compared to the mother in Australia, to offset the risk to the children’s emotional well-being arising from being separated from their mother. The ability of the father and members of his family to provide for the children’s physical, emotional and other developmental needs in Iraq is completely untested; hence the court would be reliant on evidence provided about the potential parenting ability of the paternal family unit compared to the mother’s demonstrated ability.
In particular the family consultant said separation on such young children may not be as easy to observe, but the trauma can have a profound effect on the children which can continue until they are well into adulthood. She said that children of that age find it difficult to demonstrate distress and therefore suffer generalised distress as it alters their sense of security, a sense that the world is predictable.
The family consultant was cross-examined as to the mother’s belief that her life was at risk and she said that this arose from the mother’s experience of the father driving her to remote places where the mother felt scared as she knew that in Iraq sometimes women would be taken to remote places and murdered. I find that the mother’s fears are genuine.
The family consultant said that whilst it is possible for parents to engage with children well in the set up at a conference it does not mean they can manage their day to day needs.
I am satisfied that the family consultant has no expert knowledge on the parenting legalities in Iraq.
There was some cross-examination of the family consultant about the children’s attachment. I accept her evidence that they are primarily attached to the mother. The question was what happens if there needed to be a change of attachment and the family consultant said this would certainly be a significant negative burden for the children.
I accept the evidence of the family consultant as being reliable. Given consideration of all of the evidence before me I am likely to accept these recommendations.

Some specific findings of facts

I have made some specific findings of fact to assist in the determination of these proceedings. These are in addition to other findings made by me and identified elsewhere in these reasons.
Care of the children
In relation to the care of the children, I accept that the mother has been their primary carer. She has met their day-to-day needs including: their bathing, eating, drinking, sustenance and their other needs.
She is careful in terms of their medical treatment and has made appropriate appointments for treatment. There is evidence, which I accept that, from time to time she has been short tempered and stressed as a consequence of the care of the children.

If the children remain in Australia and the father returns to Iraq it seems unlikely that the children will be able to have any meaningful relationship with their father in the foreseeable future. I accept that if the children remain in their mother’s care the relationship between them and the father is at risk and is likely to diminish or end.
The mother submitted that given his time with the children, combined with their age, the father has not established a meaningful relationship. Given the evidence I am satisfied the father has established such a relationship.
In this case the father must return to Iraq later in 2017 and the mother does not wish to do so. For the time being, at least, the mother and children are entitled to remain in Australia. Consequently, the relationships with both parents cannot be maintained for the short and medium terms, and if the mother is successful in this proceeding and likewise in her visa applications it may be the long term. A relationship can be kept in existence by regular electronic communication, but this is not an effective substitute for a face-to-face relationship.
The mother’s evidence in confirming the case outline prepared on her behalf is that she will not voluntarily return to Iraq even if the children are sent back. Either way the children are likely to be deprived of a parent.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

The mother was the subject of violence and coercive behaviour. There are systems in place in Tasmania to provide avenues to understand and escape such behaviour, even that in the context of what some, albeit not this Court, may call culturally accepted behaviour. The mother is now protected and the behaviour has ceased.
The father complained that the mother made wide-ranging allegations about the father’s conduct. The father denied engaging in such conduct and claims that they were fabricated to assist her in these proceedings and her visa applications.
Despite the submissions made by the father as to the alleged use by the mother of false violence allegation; I have made findings set out earlier.
I do not accept the father’s evidence that Mr F encouraged the parents to apply for permanent residence.
I accept the evidence of the family consultant that if the children were separated from the mother, their primary attachment figure, they would suffer significant psychological harm. These children have significant health and developmental needs. I am not convinced that the father and his family are able to meet the needs of these children in City Z. The paternal grandmother has little knowledge of some of the conditions.
The mother consented to the children spending unsupervised time with the father provided they remained on the airport watchlist. Further, the Court holding passports for the children seems to offer the mother comfort in her former belief that time should only be supervised.
I accept that there is no evidence to suggest that the children are at any risk in the mother’s care.
In applying the considerations set out in this area the Court has given greater weight to the relevant considerations set out in this factor.

Section 60CC(3) Factors

Section 60CC(3) (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

The children are at an age too young to express any relevant views.

Section 60CC(3)(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

The children have no relationship with any other persons apart from the parents. As I earlier indicated, the mother has been the children’s primary carer since birth and she is their primary attachment figure.
The mother submitted that the father failed to see the children on a supervised basis in the period of about eight months after separation and time only commenced after orders were made. Given the particular circumstances of this family and the dynamics of the parents’ relationship, I make no adverse finding in this regard.
The mother submits that she has genuine concerns about whether the father is or is not a loving and involved parent. Given the broader evidence, I am satisfied that he does genuinely care for his children and wants a relationship with them. The children are warm and familiar with the father.
The father was involved in the care of the children during the marriage and I reiterate the earlier findings in this respect.
The father complained that his relationship with the children was disrupted by the mother not allowing him to see the children unsupervised until a watchlist Order was made. I reject that complaint and given the particular circumstances of this family and the dynamics of the parent’s relationship, I make no adverse finding in this regard.
I accept that the children have an extensive family networks in Iraq with both parents’ families which is as yet almost completely untapped, except with electronic communication.

Section 60CC(3)(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;

I repeat the comments made above in terms of the previous factor.
I accept the mother’s submission that parenting these children with special needs on one’s own, after a caesarean, on limited funds, with no child support, no licence or car, no family support, in a foreign country, is a formidable task. The mother has discharged that task well. The mother is proactive in implementing health suggestions made by the therapists, and adhering to that medical advice.
The father asserts that he was actively involved in the children’s care, including making decisions about their medical treatment. I repeat that which I have expressed earlier.

Section 60CC(3)(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

I also accept that prior to separation the father applied his income from the scholarship to support the family. I find that the father used such money to, in part, control the mother during the relationship in terms of restricting heating, washing facilities, housekeeping and the like.
The father has not paid, or offered to pay, any meaningful child support for the children since separation. He has provided for modest items for the children but has declined to provide money to the mother for herself or the children. He has paid the fees for the Children’s Contact Service and the costs of the Y Service. The father has used some of his funds to meet the costs of engaging legal practitioners in these proceedings. I have had regard to those payments.
His explanation as to his failure to support the children following separation was unconvincing. He had the capacity to pay and chose not to do so. That reflects poorly on his parenting is a continuation of his use of money in an endeavour to control the mother.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The mother is concerned about the security issues in Iraq for the children. She is concerned about their ability to access appropriate medical care.
I accept that the change of the care of the children to the father would be profound for them, particularly with the loss of their primary attachment figure and carer. I accept the evidence of the family consultant that:-
54.They [the children] would feel abandoned by [the mother] and have no understanding why this occurred. They would be confused and experience significant feelings of grief should they be separated from her. This experience could have a long-term negative impact on the boys’ ability to form trusting relationships, including as adults....
56.... it is suggested that the court would need to determine that [the father] and his family members are likely to be significantly better able to meet the children’s needs in Iraq, compared to the mother in Australia, to offset the risk to the children’s emotional well-being arising from being separated from their mother.
I am not satisfied that the father and his family would provide as good support and parenting for the children as they now experience, let alone ‘better’. Having seen and heard to evidence of the father and his parents, I conclude that it would likely be a much inferior parenting arrangement that which is their current situation.
I accept that either outcome would likely result in the children having no relationship with their one parent or the other.
I accept that it is the father’s preference in this case that the mother return to Iraq with the children, however the mother is equally determined not to do so.

Section 60CC(3)(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

Of the available outcomes neither provides any sanguine arrangement for the children to see their non-resident parent.
I accept that if the children are not living in Iraq the practical difficulty and expense of them spending time with or communicating with their father will be such that it is likely that they will never have a meaningful relationship with him or be able to maintain personal relations with him. The father would be limited by distance and cost in terms of face-to-face time.
Given the respective legal systems, the tyranny of distance and cost it is unlikely that the mother would travel to Iraq at all, let alone with the children.
I accept that the father may only see the children in rare visits to Australia, if at all. I note and accept that there is a commitment over the father’s parents’ home in Iraq and if the father fails to return to Iraq it is understood by the father and his family that the Iraqi Government can sell their family home. The father’s visa is such that he must leave Australia after his visa ends and he is unable to apply for a further stay.
The father is likely to have the financial capacity to return to Australia at a later date but there are practical impediments to this occurring. It is likely that the father is similarly likely to face significant difficulties in returning to Australia after his student visa expires.
The mother submits and I accept that if the children remain with her in Australia there is at least the possibility that the children will spend time with both parents.

Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

I repeat my earlier remarks relative to this factor, in particular the roles played by each parent in the care of the children. I reiterate the comments of the family consultant who said:-
49.…. the mother has a demonstrated ability to meet the additional needs of [the children .....
51.There have been no concerns raised about the mother’s parenting capacity. It is the father’s first preference that they are cared for primarily by their mother...
I repeat my previous comments that the father is a well-educated professional who was modestly involved in the children’s care prior to separation.
Since that time he has been observed by staff at the Children’s Contact Service, whose reports reflect a capable, considerate parent with the ability to provide for the children’s needs. The family consultant noted that both parents were observed to be kind and caring to the children and appropriately involved in the children’s play, praising their accomplishments and introducing educational elements.
I accept the evidence of the father that he receives a comfortable income through his employment as an academic professional in City Z.
If the children live in Iraq the father will continue to work in paid employment and will need the assistance of others to help him care for the children. His parents are both in their seventies and suffer from health problems. The father will seek assistance from his sisters.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

The mother and father are both Iraqi citizens, as are the children. They are in Australia on limited student visas. They are Shi’a Muslims, but the mother says that the father and his family adhere to much stricter religious practices.
The mother has acknowledged the importance of maintaining the children’s connection to their religious and cultural heritage and intends for the children to learn to pray, read the Koran, and attend the Mosque. However, if she is successful the children are unlikely to visit Iraq as children and may not have their families’ language.
The children have health difficulties to which I have referred earlier.
One of the children was born with a clubfoot and wears a night boot. Two Iraqi specialists have considered Dr G’s report and have deposed that there are medical services in City Z which can treat the child’s clubfoot. I accept that evidence.
Both children appear to have developmental delays and certain behaviours which have been assessed as requiring testing in the future for autism spectrum disorder. They are on the waiting list at an allied therapy service. The family consultant noted:-
42.The boys impressed as being vulnerable due to their developmental delays.
The father submits that whilst the children have been identified as likely being on the Autism spectrum, no formal diagnosis has yet been made. Therefore he contends that this should not be a factor that should have a bearing on the determination of what is in the children’s best interests in all of the circumstances. With respect to that contention the likelihood of a diagnosis of autism is a significant feature and ought not be disregarded.

Section 60CC(3)(h)Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant factor.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

I repeat the relevant comments made earlier, including child support, the relative parenting skills and the like.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

The mother has made broad-ranging allegations which the father strongly denies. These are addressed elsewhere in these submissions.
As to the question of violence I have earlier made findings which I reiterate here and which I have considered in the overall outcome of the parties’ applications.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;

I have earlier referred to the Police Family Violence Order made on the date of separation the subsequent Family Violence Order, which has since expired. I have had regard to the facts and allegations upon which the orders were based.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Whatever order is made there are likely to be other proceedings. If an order is made in Australia that the children remain in Australia and the mother remains in Australia, the father may later seek more expansive orders.
If the mother is to return to Iraq then the orders made in this court have no effect in Iraq and proceedings may follow in an Iraqi court.
As such this is not a relevant consideration given all the circumstances.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;

I have considered the mother’s immigration applications in terms of these proceedings. The application could take up to three to four years more to be finally determined. The father submits that if the children are required to go to Iraq after that period of time they will be disadvantaged by the lack of a relationship with their family and a lack of connection with their culture and religion. I have considered this submission in terms of this application.
I have considered the extent of the respective families in Iraq in terms of this proceeding and it is likely that the children will not have the benefit of knowing and forming relationships with their extended family.

DISCUSSION & CONCLUSIONS

In her submissions counsel for the mother noted that these proceedings have come to hearing in the Family Court fairly quickly, that the children are aged two and a half and are Iraqi nationals, but have spent the whole of their lives in Australia.
They have special health needs, which are being dealt with in Australia and may not be dealt with as well in Iraq. The mother wants to continue in her role as a primary carer, and the father wants to take over the role of primary carer.
Whilst this is a relocation matter it is not a special category of case and the normal principals apply. I accept that the mother is the primary attachment figure and primary carer. This is the evidence of the mother and the family consultant, and any change to that circumstance would have an enormous adverse impact on the children.
The father’s evidence is that the children should come with him to Iraq and that his family would look after them. That course of action gives me some concerns, which I have earlier discussed.
I have had the opportunity of seeing and hearing the paternal grandparents and I accept that the paternal grandfather’s health appears fragile. As to the paternal grandmother, she does not understand the nature of the special needs of the children and did not understand the meaning of the word autism even though it was interpreted to her. I am satisfied that they could not provide support or care to the same level as is currently provided by the mother.
The father is an untested parent. That should not be held against him as I accept that all parents commenced their roles in that regard as ‘untested parents’. However, the mother in this case is the tested parent and has well met the needs of the children.
I accept the submissions on behalf of the mother that whatever the outcome is, it will be not fair on one or other parent. To leave the mother in Australia and for the father to take the children back to Iraq would be unfair on the mother. As would leaving the children with the mother in Australia and the father returning to Iraq would be unfair on the father.

Fairness to the parents is not the test.
It is considering the relevant factors in terms of the children’s needs.
I accept and find that in terms of stability and civil unrest Tasmania is much better than is City Z. I accept the expert evidence of Dr F to that extent.
The crux if this decision is this: it is not in issue that the mother will not go back to Iraq unless forced to do so by immigration authorities, and I do not intend to trespass upon determinations which are properly left to administrative officers, tribunals and courts in that area unless necessary in the determination of the children.
The question for me is whether the children are left in a stable, happy circumstance, as they are at the moment, where they are seeing their father on an unsupervised basis or to move them to the care of their father who would take them back to Iraq in less known circumstances.
Counsel for the mother quite rightly suggested that it is a ‘punt’ in terms of the children to place them in the care of the father.
I do not intend to make any finding as to the adequacy or inadequacy of the judiciary in Baghdad or City Z as the information is not sufficient for me to conclude one way or the other.
I accept, on the evidence from the mother, that she genuinely fears for her life in Iraq. The basis, if any, of those fears are probably better left to a determination in the immigration context.
I accept that the mother has been the subject of family violence. She married very young and the father was dominant, as that may well be the culture. However, there is evidence, which I accept, that the mother has been assaulted and hit by the father.
I accept that the mother was not provided with keys to their house and was dependent upon the father’s permission to go outside their home. I accept that the father often yelled at the mother in Arabic. I also accept that the father has suggested to others that the mother has taken a boyfriend.
That allegation causes the mother significant concerns bearing in mind the culture and background from which both the mother and father are involved.
There is no evidence that the mother has, at any time, taken a boyfriend or the like.
I make no criticism of the mother in terms of not calling her brother or father, given the tyranny of distance and the differences to which she has alluded.
I accept that the father focused on his own needs from time to time, including his refusal to see the children without a supervisor if it involved a watch list order.[35]
[35] Father’s trial affidavit paragraph 69.
If these children are removed from their mother’s care it will have a profound detrimental effect upon them and I accept the oral evidence of the family consultant and that contained in paragraph 54 of her report, to which I have earlier referred.
It was put to me that s 128 of the Evidence Act 1995 (Cth) imposes a higher standard in terms of the allegations of family violence. I have had regard to that section in determining all findings in respect of these reasons.
I accept that child bride, and arranged marriages are common in Iraq. However, it is in this Australian context that I must and have made determinations in these proceedings.
I accept the parties separated on at least one, probably two, occasions. I accept the mother’s evidence that she was prevented from attending school after she moved to the father’s family home, notwithstanding that the father’s sisters were well educated.
There was hyperbole in the evidence both parties and I have endeavoured to deal with that in my assessment of the evidence.
I accept that the father dominated the mother.
I accept there is nothing in the medical reports that show violence, however there is evidence of violence sufficient for me to come to a conclusion, albeit through the prism of a Western Judge looking at a Middle Eastern family.
In the context of Australian law it is controlling behaviour in the context that there were episodes of violence such as the slapping and the reluctance to allow the mother out of the home unless the father was present and he had control of the keys to the family’s home.
I also accept that the father used funds to control the mother. I accept this in the circumstances that there were limited funds available. However, the impact on the mother in terms of the use of washing machines and the like is indicative more of control rather than lack of funds.
I do not accept the father’s explanation for not providing meaningful financial support for the children since separation.
For the children to live with him they would need to move into his care over the next few months. I am not satisfied in all of the circumstances that there ought to be a change of residence at this stage.
Accordingly, I will be making an order that these children with special needs remain in the primary care of their mother. That will be in Australia, for the time being at least, and until such time as there is a determination by the immigration authorities.
In coming to this conclusion I am conscious that it may mean that the children have little or no relationship with their father who is deeply attached to them and loves them. The alternative is likely to be that the children have little contact or communication with their mother who is their primary carer and is likewise attached to them and also deeply loves them and they deeply love her.
As with most such cases there is rarely middle ground.
Given the order I propose to make and the evidence that the father will return to Iraq it is important that the relationship between the children and the father be as strong as possible when he returns to Iraq later this year. This may provide a foundation for the children’s continuing relationship with the father. This is particularly in the uncertain outcome of the visa processes in which the mother in now engaged. I am conscious of the violence to which I have alluded earlier in these reasons. The father has been and seeks to be close to the children. During this hearing the parties agreed on a regime of unsupervised time. The father gave evidence that his PhD thesis would be finished by late January 2017 and he will comply with his visa conditions and leave Australia by September 2017.
Consequently, he should have significant time with the children over that period. I had considered equal time, but given the violence and the level of conflict I was not satisfied that this would have been in the best interests of the children.
Further, I will make orders for regular Skype or similar audio and visual communication between the father and the children once he returns to Iraq. It is not clear if and/or when the father may visit the children in Australia. As such crafting of any parenting orders in that regard would need be done in a vacuum, which this Court could not countenance. These children have health difficulties and the nature of their relationships with the father at that time is beyond speculation. However, I will be making an order as to agreed time should the father visit Australia, and I make it clear to the mother that she ought to agree to reasonable, child focused time between the father and the children if visits occur.
Given the state of that evidence, the findings made by me and my consideration of the facts in terms of the relevant s 60cc factors, I am satisfied that these needs would be far better met for the children in Australia in the primary care of the mother rather than in Iraq in the care of the father. This included my concerns about the father’s approach to the children’s health issues and the paternal grandmother’s evidence that she did not understand the concept of autism or developmental delay.
The father said that this is part of the mother’s long-term plan to remain in Australia. I do not accept that hypothesis. It is likely that the marriage of these parties was fatally flawed from the start, at least through the mother’s eyes. It came apart whilst the parties were dealing with the loss of their daughter and the demands of parenting their sons and at the same time the father was working hard towards his degree.
As to parental responsibility, given the determination as to primary residence and that the father is likely to be living in Iraq by September this year and that the mother will need to make decisions about the children, the history of violence and controlling behaviour; the mother ought to have sole parental responsibility. However, she will be required, where it is reasonably available, to seek the father’s input and guidance.
The mother gave evidence of the passport application process for the children. That is set out in her affidavit.[36] The father said that he needs the mother’s consent for a passport. He also said that he would not apply for a passport unless the Court ordered him to do so or it was for the return of the children to Iraq. It is not clear to me how robust the Iraqi passport system is in terms of reliability.
[36] Paragraphs 459 to 478.
Accordingly, if the children are to remain in Australia they should be on the Airport Watch List, although that may not assist if passports are issued in other names.
Given the concern about passports I intend to make an order requiring the parties to apply for Iraqi passports and have those passports placed with the Registrar of the Family Court and not released without order of a court exercising jurisdiction under the Act or alternatively the clear written consent of both parents.
Should the children be in the primary care of the mother? The answer is yes they should.
Should the mother be required to return to Iraq prior to the determination of her application for an Australian Visa? Given all of the evidence and considering the needs of the children, I am satisfied that she ought not to return pending the outcome of her visa application.
Given the earlier comments I have determined that the mother should have sole parental responsibility but should where feasible seek input from the father.
Accordingly, I shall so order.

I certify that the preceding three hundred and eighty two (382) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 February 2017.

Associate:

Date: 1 February 2017

[2017] FamCA 38

1 February 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness