Guan and Abbadi

[2017] FamCA 176

FAMILY COURT OF AUSTRALIA

GUAN & ABBADI [2017] FamCA 176

FAMILY LAW – CONTRAVENTION – Application by the mother alleging that the father has contravened an Order to do all things necessary to return the child to Australia – Where this contravention is declared to be a more serious contravention – Where the mother has established the contravention beyond reasonable doubt – Where the father has failed to prove, on the balance of probabilities, that he had a reasonable excuse for contravening the Orders – Where the matter is adjourned to a set date to consider the issue of penalty.

Family Law Act 1975 (Cth) ss 60CC, 70NAC, 70NAE, 70NAF, 70NAF(2)(b), 70NDA, 70NFA, 70NFB, 70NFG.

APPLICANT: Ms Guan

RESPONDENT: Mr Abbadi

FILE NUMBER: SYC 8200 of 2015

DATE DELIVERED: 13 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 13 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: WB Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT: In Person

Orders

THE COURT DECLARES THAT:

1. The father contravened Order 3 of the Orders made by Justice Johnston on 7 September 2016, without reasonable excuse, by failing to do all things necessary to cause the child, B born .. 2011, to be returned to Australia from the Middle East.

2. The father has failed to establish a reasonable excuse for failing to comply with Order 3 of the Orders made on 7 September 2016.

3. The father’s contravention of Order 3 of the Orders made 7 September 2016 is a more serious contravention for purposes of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

THE COURT ORDERS THAT:

1. The matter is adjourned for hearing in respect to question of considering penalty to 10.00 am on 31 March 2017.

1. The issue of costs is reserved to 31 March 2017.

1. I DIRECT the respondent to, within 7 days of the date of these Orders, file a Notice of Address for Service and serve that Notice of Address for Service upon the solicitor for the Applicant. 

THE COURT NOTES THAT:

A.I have invited the parties to consider consulting International Social Services Australia, or such other organisation that the parties consider appropriate, for the purpose of obtaining assistance to mediate issues of concern in respect to the return of the child.

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 Guan & Abbadi 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 SYDNEY

FILE NUMBER:        SYC 8200 of 2015

Ms Guan

Applicant        

And

Mr Abbadi

Respondent    

REASONS FOR JUDGMENT

Introduction

1. The matter before the Court is a contravention application brought by the mother in which she alleges that the father has contravened Order 3 of the Orders made by Justice Johnston on 7 September 2016 (“the Order”).  The Order provided for the father to “do all things necessary to cause the child [B], born in 2011, to be returned to Australia from the Middle East within 30 days and to deliver her into the care of the mother.”

2. To date the child has not been returned. The father relies on his affidavit filed 19 January 2017, to explain why that has not occurred.

Background

1. The mother is 32 years of age and was born in Asia.  The father is 37 years of age and was born in the Middle East.  Both the mother and the father are Australian citizens. The parties were married in 2010 and B is the only child of the relationship. 

2. The course of events that gave rise to these proceedings was that, in 2013, the parties travelled overseas with the child. The parties firstly travelled to Asia, in order to visit the mother’s grandmother who had been diagnosed with terminal cancer. The parties then travelled to the Middle East with the child in order to visit the paternal grandparents. 

3. It is the mother’s case that it was the mutual intention of the parties for the child to spend several weeks with the father and the paternal grandparents in the Middle East, and then for the father to return with the child to Sydney.

4. It is acknowledged by the parties that the father returned to Sydney in April 2013 without the child and that the child has been living in the Middle East with her paternal grandparents since April 2013.

5. Ultimately, the circumstances in which the child has stayed in the Middle East and the subsequent conduct of the parties, together with the range of matters referred to in section 60CC of the Family Law Act 1975 (Cth) (“the Act”), will be considered as part of the parenting proceedings commenced by the mother in this Court.

6. The central issue in these proceedings is whether the father has contravened the Orders made 7 September 2016.

7. My role in considering the contravention application, is not to revisit the Orders made by Johnston J on 7 September 2016, but rather to consider whether there has been a contravention of those Orders in terms of Division 13A of Part 7 of the Act.

8. Section 70NAC of the Act relevantly provides:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order - he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order …

1. The mother relies on both of the limbs of section 70NAC in arguing that the father has both intentionally failed to comply with the Order and made no reasonable attempt to comply with the Order. The mother further contends that the father has not established a reasonable excuse for the contravention.

2. The mother submits that the circumstances in which the contravention has occurred places the contravention in the more serious category as contemplated by subdivision F of Division 13A of Part VII of the Act.

3. The mother accepts that, as result of the alleged contravention being in the more serious category, pursuant to section 70NAF, she carries the evidentiary onus of satisfying the Court “beyond reasonable doubt that the grounds for making the order exist”.

1. The mother further accepts that the father carries the onus of establishing, only to the balance of probabilities, that he had a reasonable excuse for the contravention.

2. In this matter, I find that the father has made no reasonable attempt to comply with the Order and I do so for the following reasons:

3. Firstly, I reject the father’s argument that he is without power to cause the child to be returned to Australia because his mother has obtained an order for custody of the child in the Middle East. In that respect, the father asserts that an order for custody in favour of the paternal grandmother was made on the 24 August 2016. The father’s evidence that he was not aware of the proceedings commenced by his mother in the relevant is implausible in circumstances where he has been in regular contact with his parents.

4. Further, the father’s evidence that he was not aware of those proceedings until after he telephoned his family to inform them of the Orders made by Johnston J on 7 September 2016 is inconsistent with the fact that, in the proceedings before Johnston J the father’s solicitors filed an affidavit which detailed the orders made by the relevant court for the paternal grandmother to have custody of the child. It is inconceivable that the father’s solicitors would not have advised the father of such a significant matter.

5. Second, the father’s evidence that he did not need to consent to his mother’s application for custody of the child because he gave a power of attorney to his father is not credible in circumstances where the father’s evidence was that the power of attorney had been given for the purpose of enabling the paternal grandfather to represent the father’s business interests and to manage a property that the father owns in the Middle East.

6. Third, the Order of the relevant court dated 24 August 2016 as translated,[1] refers to the father, himself, as being the respondent to the paternal grandmother’s application for custody. That Order indicates that the father was represented by a solicitor, Mr C and that the mother was represented by Mr D. I will subsequently refer to the significance of that representation.

   [1] Affidavit of the father dated 19 January 2017 at page 23.

7. For these reasons I find, beyond a reasonable doubt, that the father was aware of the proceedings commenced by his mother to obtain custody of the child and that, as the respondent to those proceedings he, through his legal representative, consented to orders being made for his mother to have custody of the child.

8. It is significant that the father has given evidence that his attempts to comply with the Order of Johnston J of 7 September 2016 have been through Mr D who, as noted, is recorded as representing the paternal grandmother in those custody proceedings. Specifically, the father has given evidence that he has engaged Mr D to take the necessary steps to set aside or reverse the order made in the relevant court granting custody to the paternal grandmother.

9. The proceedings to set aside the order granting custody to the paternal grandmother were commenced prior to 4 October 2016. The father has given evidence that he was advised by Mr D, who was in communication with the father’s Australian Lawyers, that those proceedings would take approximately three months to finalise. No explanation has been provided as to why those proceedings have not been finalised.

10. Further, despite asserting that the paternal grandmother has custody of the child the father has given evidence that if the mother travelled to Middle East it is within his power to ensure that the mother can spend some time with the child.

11. Finally, when the father was asked whether, if the Orders made by Johnston J had provided for the child to spend one day per week with the father, he would bring the child to Australia, and the father responded, “Yes, I bring.”

12. Accordingly, I am satisfied beyond a reasonable doubt that the father was aware of and consented to the application by the paternal grandmother to obtain an order for her to have custody of the child and that, since the Order was made by Johnston J on 7 September 2016, the father has failed to take the necessary steps that are reasonably available to him to have that custody order set aside.

13. Finally, based on the father’s own evidence, irrespective of the existence of that custody order, I am satisfied beyond a reasonable doubt that the father has the capacity to cause the child to be brought to Australia and that he has not done so.

14. Accordingly, I am satisfied, beyond a reasonable doubt, that the wife has established the grounds for the making of a contravention order.

15. In terms of evidence adduced by the father as to the existence of a reasonable excuse for not complying with the Order, I note that the father indicated his concern that the child has lived with the paternal grandparents in the Middle East since April 2013, and that the child has now become immersed in life in that country and culture. The father also stated that the child has a close relationship with, not only her paternal grandparents, but also the father’s siblings and his nieces and nephews.

16. I also note the father’s concerns about the impact of the change, on the child, if she was brought to Australia. This is particularly the case, he submitted, if the child were to live only with her mother who does not speak Arabic.

17. I can understand those concerns on the part of the father, but they do not fall within section 70NAE, which relevantly provides;

    70NAEMeaning of reasonable excuse for contravening an order

    (1)      The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

    (2)      A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

    (a)       the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

    (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

    (3)      If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

    (4)      A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

    (a)       the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)       the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

    (5)      A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

    (a)       the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)       the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

    (6)      A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

    (a)       the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)       the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

    (7)      A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

    (a)       the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)       the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

1. I acknowledge that the circumstances that constitute a reasonable excuse “include but are not limited to” those matters set out in section 70NAE. However, matters such as the cultural background of the child, the significance of change for the child and the child’s significant relationships, are all matters which would ultimately be considered by the Court at final hearing or in an interim hearing dealing with parenting arrangements on a short term basis.

2. Accordingly, I find that the father has failed to establish that he had a reasonable excuse for failing to comply with the Order made 7 on September 2016 as contemplated by section 70NDA of the Act.

3. The next matter for me to consider is whether I regard the contravention as being in the more serious category as referred to in Subdivision F of Division 13A of Part VII of the Act.

4. As contemplated in section 70NFA(2)(b), I am satisfied that the father has behaved in a way that has shown serious disregard of his obligations under the primary Order made by Johnston J on 7 September 2016. Those obligations are quite clear – that he is obliged to do all things necessary to cause the child, B, to be returned to Australia within 30 days of that order. That has not occurred. 

5. This is despite the fact that I have found, beyond a reasonable doubt, that the father had the capacity to ensure that the child is returned to Australia. 

6. This is in circumstances where the mother has not seen her daughter since April 2013 and the father’s conduct is preventing her from seeing her daughter. 

7. I am therefore satisfied that the contravention is a more serious contravention, as contemplated by section 70NFA. 

8. Having so found, section 70NFB sets out the powers of the Court. I indicated to the parties at the commencement of these reasons, I intend to stand this matter over to permit the parties to address me on the Orders that the Court should make in respect to the father’s contravention which I have found to have occurred.

9. Without expressing any concluded view as to what orders are appropriate in the circumstances, I note that the powers of the Court are very extensive.  The Court is empowered to make orders that can range from, for example ordering the parties attend counselling through to imposing a bond or even a custodial sentence. Such a custodial sentence is subject to the Court being satisfied of relevant matters set out in section 70NFB and section 70NFG. If satisfied of those matters, a custodial sentence can be imposed for a period of up to 12 months or until such time as the Orders are complied with. 

10. The potential consequences for the father of my finding that he has contravened the Orders of Justice Johnston, are such that the parties should be provided with the opportunity of addressing me specifically on the issue of potential penalty. Accordingly, I propose standing that aspect of the matter over to enable that to occur. 

11. Finally, I note that I have no power to order the parties to attend mediation, but I invite them, before the Court hears submissions in respect to penalty, to consider attending mediation through the International Social Service Australia, or some other agency that assists parties to mediate issues in respect to the international geographic location of children.

12. In that respect, I note the concerns of the father regarding the child being returned to Australia without measures being in place to assist her to adjust to what would be a significant change for her.

13. It may well be that the parties could be assisted to address those issues by the process of mediation. If such a resolution is achieved and the Orders were complied with then that would have a very significant bearing on the future course of these proceedings including in respect to possible penalty.

14. Having noted that invitation to the parties, I make the Orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 13 February 2017.

Associate: 

Date:  23 March 2017