Hadi & Kalar
[2022] FedCFamC1F 73
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hadi & Kalar [2022] FedCFamC1F 73
File number(s): SYC 157 of 2022 Judgment of: HENDERSON J Date of judgment: 17 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary parenting orders – where the mother filed an application seeking a summary order for the return of the child to the United Arab Emirates – where the child has a residency visa in the United Arab Emirates and was living with the mother in that country – where the child, mother and father are Australian citizens – where the child had lived in Australia for 5 years up to July 2021 – where the father absconded with the child to Australia and initiated proceedings seeking orders that the child remain in Australia – Killam v Loeng (2015) FLC 3-642 considered – where the Court did not have any evidence whether either party can fairly litigate final parenting issues in the United Arab Emirates – not an order in the child’s best interests to order her return to the United Arab Emirates – mother’s application dismissed Legislation: Family Law Act 1975 (Cth) s 63-64
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: EJK v TSL; sub nom Kwon and Lee (2006) FLC 93-287; (2006) 35 Fam LR 559 (“EJK”)
In re F. (A MINOR) (ABDUCTION: CUSTODY RIGHTS) [1991] Fam 25
Karim & Khalid (2007) FLC 93-348; [2007] FamCA 1287
Killam v Leong (2015) FLC 93-642; [2015] FAMCAFC 41
Pascarl v Oxley (2013) 49 FamCAFC 47
Zanda v Zanda (2014) 293 FLR 1; [2014] FamCAFC 173
ZP v PS (1994) 181 CLR 639; (1994) 122 ALR 1
Division: Division 1 First Instance Date of hearing: 16 February 2022 Place: Sydney Number of paragraphs: 84 Date of hearing: 16 February 2022 Place: Sydney Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Chamberlains Law Firm Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Lawbridge Lawyers & Consultants ORDERS
SYC 157 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HADI
Applicant
AND: MS KALAR
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
17 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The mothers’ application filed 13 January 2022 seeking a summary order for the child X, born … 2015, to return to the United Arab Emirates is dismissed.
Pending Further Order
2.That the child is to remain on the Australian Federal Police Airport Watchlist.
3.That the child is to live with the father in Australia whilst so ever the mother does not live in Australia.
4.That the child is to spend time as agreed with the mother in Australia as frequently as is possible with the mother returning to Australia.
5.That the child have Skype, or other such telecommunication time with the mother daily at a time convenient to the child.
6.In the event the mother returns to live in Australia prior to the final hearing listed in November 2022, Order 3 is discharged and the parents may approach my associate in Chambers for an urgent listing in the event they are unable to agree upon her parenting arrangements.
THE COURT NOTES THAT:
A.The mother will be returning to the United Arab Emirates on Sunday 19 February 2022 without the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadi & Kalar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This was an application by the father, Mr Hadi born in 1981, (“the father”) seeking to dismiss the mother’s application that I make a summary order for the return of the parties child X, born in 2015 (“the child”) to the United Arab Emirates (“UAE”) where she and her mother, Ms Kalar born in 1984, (“the mother”) had been residing with the father’s consent since July 2021.
The father’s ultimate application was that the child remain in Australia pending a final determination or agreement between the parties regarding the child’s living arrangements.
The mother asserts that the father agreed for the child to live in the UAE with her for at least two years. That he absconded to Australia with the child in January 2022, taking her away from her usual residence and asserts that I should make a summary order for her return to City B.
I informed the parties at the outset that I could list the matter for a final hearing the week of 7 November 2022, appoint an Independent Children’s Lawyer (“ICL”) and order the preparation of a Family Report. The parties agreed to this course and the reality is that the final hearing has now been expedited.
Mr Duane of Counsel acted for the father and Mr Guterres of counsel acted for the mother
The material I read was as follows.
For the father:
(a)Father’s affidavits filed 9 February 2022 and 13 January 2022;
(b)Father’s Reply filed 9 February 2022;
(c)Father’s court book; and
(d)Counsel’s case outline.
For the mother:
(e)Mother’s affidavits filed 16 February 2021 and 27 January 2022, with annexures;
(f)Mother’s court book; and
(g)Counsel’s case outline.
CHRONOLOGY
The relevant chronology which is as follows.
In 1981 the father is born in the United Kingdom and the mother was born in 1984 in Country D.
In 2015 the child is born.
In November 2020 or January 2021 the parties separate and remain living separated under one roof
On 29 March 2021 the parties become Australian citizens.
On 26 June 2021 the father writes an email in support of the mother’s application for a travel exemptions and uses the words “while visiting family over the coming months” (father’s affidavit filed 9 February 2022, paragraph 12).
In July 2021 the father agrees for the child to travel with the mother to the UAE to spend time with the maternal family. Return tickets are purchased for a return to Australia in January 2022.
The parents corresponded frequently regarding the child and mother obtaining residential Visa’s for herself and the child for 2 years in the UAE which the father assists in obtaining, attending school in the UAE, the mother obtaining a work contract for 2 years.
Between 7 December and 14 December 2021 the father spends time with the child in City B by agreement with the mother.
On 15 December the father arranges, and the mother agrees, for the child to accompany the father to Country E to spend time with the paternal family.
On 6 January 2022 the father returns to Australia with the child.
On 13 January 2022 the father commences proceedings. The child’s name is added to the Australia Federal Police (“AFP”) Airport Watchlist.
Between 27 January and 6 February 2022 the father facilitates the child spending time with the mother when the mother arrives in Australia seeking the return of the child to the UAE.
EVIDENCE
The following facts are common ground.
The child has always lived with the mother and the mother has been her primary carer.
That the mother, father and child are Australian citizens.
The child has always lived in Australia apart from six months in the second half of 2021 when she lived in City B with the mother.
The father agreed to the mother taking the child overseas to visit her family in July 2021 for a holiday and return airflight tickets for the mother and child were purchased with a return date in January 2022. This is clear from the mother’s own material notably.
The mother’s psychologist report of June 2021 indicates that she was suffering and missing her family who live in Country D and UAE.
The father wrote a letter to this effect to the Department of Immigration (“the Department”) to permit the child and the mother to leave Australia for a holiday of up to six months to visit family.
The mother’s brother wrote a letter to the Department confirming she will be staying with him for a period of up to five months and that this would give the mother an opportunity to be reunited with her family and for the child to spend time with her maternal family.
The child would be enrolled in a school in City B to continue her education whilst overseas.
The father would support financially the costs of the mother and child whilst in City B.
The father joined in with the mother to obtain a residency visa for herself and the child in the UAE for 2 years.
Disputed matters
The mother’s initial premise of travelling to the UAE for a holiday for a period of up to six months changed sometime during her stay in that country such that she now has a permanent contract job for two years in City B, has rented appropriate accommodation for herself and the child and has purchased a motor vehicle.
The parties entered into a series of communications at least from August 2021 in which the mother indicated to the father her desire to remain in the UAE for financial and other reasons, including being close to her family.
In November 2021 the mother messaged the father telling him the purpose of the child’s residency visa was to have her legally settled in school, to give her a sense of security to stay as we please for the next couple of years, to not pay fines and that the father would never be prevented from seeing the child. The father joined in with the Visa applications.
The father did not object directly to her change of plan. On 24 August 2021 he wrote a message to the mother wherein he said:
…its a shame we reaching to this conclusion fast, and I really hope things work out for you there and you will be happy, it hurts me that I'm not going to be part of her everyday life, but all in all I can say that I have given all I can and had in the last few years and maybe sometimes things just don't work out and everyone have their limits (page 112 of the wife’s court book).
The father also sent other similar messages which were guarded and spoke of not wanting his daughter out of his life and at times messages that he did not necessarily agree with the change of plan and emphasised that he only wanted what was best for his daughter.
The fathers’ affidavit evidence is that he did not agree to the mother’s change of plan, wanted to maintain his relationship with the mother and the child and was concerned that he would not be able to see his child in City B if he did not maintain his relationship with the mother. This maybe an explanation of why his messages may have left the mother with the impression he agreed with her course of action and changed plans.
These are factual disputes bearing directly upon this matter which can only be resolved after cross examination of both parties as there is force in each parents stated position. For example I do not accept the submission of Mr Guterres for the mother that the purchase of a return airflight tickets is not evidence at that time of an intention to return. This highly relevant fact as well as the father at times acquiescing emails to the mother’s changed plans need to be thoroughly tested to arrive at a conclusion.
The mother consistent with her messages to the father agreed for the father to come to the UAE in late 2021 to spend time with the child and to take the child to Country E to visit the paternal family returning to City B on 14 January 2022. The father agreed to this arrangement.
The father unilaterally took the child from Country E to Sydney and did not return her to her mother as he said he would.
The father has in the language used in such matters absconded with the child to Australia.
ISSUES FOR HEARING
The mother says in light of these facts I should make a summary order to return the child to where she was living at the time the father unlawfully removed her from her home and as she is now resident in City B.
The father says this is a matter where there needs to be testing of evidence, a Family Report to be prepared and an ICL appointed to enable to the Court to make the best possible decision in relation to the long-term care arrangements for a child aged six and a half years old in the absence of the parents ability to agree.
The mother raised allegations of the fathers’ poor behaviour during the marriage, that he was an absent parent however this is inconsistent with her agreement to allow the father to have the child on his own with his family in Country E for one month in late December and her decision, which she is entitled to take, that whatever order the court make she is planning to return to the UAE this Sunday, 19 February resulting in the child living with the father until a decision is made.
The evidence would tend to show even on an interim basis that there are no risks associated with the child living with either parent and that these are good, competent, capable parents who have managed to co-parent the child post separation and who have hitherto maintained a polite and respectful attitude to each other and they should be congratulated for this conduct.
This is an interim hearing and I am unable to make findings on contested matters of fact and there are many contested facts which need to be determined
THE LAW
I was referred to multiple seminal decisions. They are as follows: ZP v PS (1994) 181 CLR 639; (1994) 122 ALR 1 (“ZP”); Zanda v Zanda (2014) 293 FLR 1; [2014] FamCAFC 173 (“Zanda”); Killam v Leong (2015) FLC 93-642; [2015] FamCAFC 41 (“Killam”); EJK v TSL; sub nom Kwon and Lee (2006) FLC 93-287; (2006) 35 Fam LR 559 (“EJK”); Karim & Khalid (2007) FLC 93-348; [2007] FamCA 1287 (“Karim”).
The decisions that have assisted me greatly in this matter are the High Court of Australia’s decision of ZP and the Full Court of the Family Court of Australia’s, as it was then, decisions in Killam and Zanda.
Their Honours in Killam referred extensively to the High Court’s decision in ZP.
In Killam their Honours quoting from ZP found that once the Court is seized with jurisdiction under section 63 of the Family Law Act 1975 (Cth) (“the Act”), section 64 of the Act comes into play. This then necessitates that the Court must consider the welfare of the child as the paramount consideration irrespective of whether a child is ordinarily resident in another country or has been abducted and brought to Australia in breach of parenting orders of the other country.
The Court is seized of jurisdiction in this matter. The child is an Australian citizen and is a resident in Australia when considering this matter. The father’s conduct in not returning the child to the mother in the UAE could be described as abducting the child however there has been no breach of any parenting order by his conduct.
Their Honours in Killam went on to further quote the High Court’s decision of ZP stating that arguments or determination of the doctrine of forum non conveniens is irrelevant in matters such as this and it is the best interests of the child that must weigh upon the Court in the exercise of their discretion (see paragraph 86).
Their Honours referred to the decision of Pascarl v Oxley (2013) 49 FamCAFC 47 which is authority for the proposition that once the child is in the jurisdiction arguments of forum non conveniens is irrelevant and best interests is applicable.
It is an important fact in issue where the child was ordinarily resident at the time that the father removed her to Australia, described in both Killam and ZP, and it is clear that as the UAE is not a signatory to Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) the Convention has no application to this matter. It is a fact in issue whether the child’s normal residence was Australia or the UAE at the time of her removal given she lived in Australia for six of her six and a half years, and some six months in the UAE. This can only be determined by testing the evidence fully.
Killam was an appeal from a decision of a single judge who made a summary order permitting the mother to remove the children from Sydney to China where the children had always lived. In that matter the family had come to Australia to see the father’s parents for a holiday, a common occurrence for them. Whilst in Australia the father told the mother he wanted to remain in Australia with the children and would not return the children’s passports to her. The Full Court upheld the decision of the primary judge who made a summary order for the children to return to China finding as follows.
(a)That the children remaining in Australia would be at complete dislocation from all they knew which was China.
(b)That there was evidence that satisfied the Court that custody issues could be determined in China.
(c)That the Chinese courts were able to deal with the parenting aspect of the matter.
(d)That it has been accepted since ZP that an Australian court can order the return of children to a foreign country on a summary basis.
(e)Even where there were no proceedings on foot in China for the return of the children or contemplation of such proceedings, Australian courts can still order the return of children to a foreign country by way of a summary order.
Importantly the Full Court in Killam emphasised, consistently with ZP, that in the making of a summary order for return, such an order is possible provided that a parent can fairly litigate the issue of the future arrangements for the child in courts of that country (see paragraph 59).
I have no evidence before me of the capacity of the father or the mother to fairly litigate the issue of the future arrangements for the child in the UAE. In these circumstances and unlike in Killam where there was some evidence of the Chinese courts system, I have no evidence of this capacity for either parent. This is a potential risk to the child in being returned to the UAE and is a factor relating to her best interests as I have absolute confidence that the parents can fairly litigate the issue of her future arrangements in Australia where she and they are all citizens and is where she currently resides. The precise language of the High Court in ZP was “the courts of the other country will properly enquire into and determine the child’s permanent parenting arrangements”, at [18].
In Killam the Full Court found there was no risk to the children returning to China to be cared for by their mother; that they were not well-settled in Australia and there would be a negative impact upon them if they were not returned to the home they had always lived in. Accordingly the trial Judges decision that the paramount interests of the children required a summary order for their return to China be made was upheld.
Returning to ZP the High Court said at [6]
…in some situations the welfare of the child as to custody may require the dispute to be determined by foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the court to make a summary order that a child be returned to a foreign jurisdiction.
The High Court in ZP referred to the Court of Appeal decision of In re F. (A MINOR) (ABDUCTION: CUSTODY RIGHTS) [1991] Fam 25 at paragraph 8 as follows:
The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child's welfare is the first and paramount consideration.
The High Court set out the pathway to follow in ZP as follows.
The first issue…is whether upon the making of an application to the Family Court for custody of a child residing in Australia, that court is entitled to make a summary order that the custody of the child should be determined by a foreign court, at [3].
This is the course the mother urges upon me.
Secondly “it is only when the Family Court determines that the welfare of the child does not require the making of a summary order that the court should embark on determining the issue of custody itself”.
This matter is listed for a final hearing in November 2022.
In Zanda the mother arrived in Sydney from Lebanon with three of her seven children and sought protection from the father at the airport. That protection was provided and the mother then commenced proceedings in this Court for all children to be ordered to return to Australia and for them to live with her in Australia. The four remaining children were in Lebanon at that time attending school and all the children had lived in Lebanon for a far greater period of time than they had lived in Australia although all were Australian citizens.
The Full Court determined the children had been habitually resident in Lebanon and that had the matter been dealt with under the Convention it was unlikely the Australian courts would have jurisdiction as Lebanon was clearly the children’s place of habitual residence and set aside the trial judge’s summary order that all the children live in Australia.
In ZP and Killam matters that weighed on the issue of the children of not returning them to a foreign jurisdiction were factors such as taking a child away from their native land, severing the children’s roots to their natural and native land, disturbing their relationships with parents, family and friends, disturbing their education and all they had known including their usual care arrangements. All matters which directly impacting upon the welfare of the child.
The child has resided in Australia for six of her six and half years and in the UAE for six months from July 2021 when she was removed by agreement for a holiday with her mother.
I accept that the child and her mother had residential status to live in the UAE, which had been granted with the father’s assistance however it is again a matter of determination after all the evidence is tested whether the UAE was the child’s place of residence when her father removed her to Sydney.
The child has not lived for a sufficiently long time in the UAE that to not return her would be severing roots to her natural and native land, disturbing long-term relationship with extended family and the like or her education. The child has just commenced the process of living in the UAE and the evidence when tested may show it is Australia which is her native land to use the words in ZP.
I have formed the view on this evidence that the welfare of the child does not require the Court to make a summary order for her return to the UAE for the following reasons.
I have no evidence of the parent’s capacity to have the determination of the child’s permanent living arrangements determined fairly in the UAE. No evidence at all that a court in the UAE will properly enquire into and determine the child’s permanent parenting arrangements and I have full confidence in the Australian system to so do. I would not by the making of a summary order be returning the child to her native land, her family roots or a long or even medium term living arrangement.
There is no physical risk to the child remaining in Australia. The child will be living with her father, in the home she has always lived in and has been re-enrolled in the school she first attended in 2020 and for the first half of 2021.
There is an emotional risk however as her mother is returning to City B on Sunday 19 February with or without her child. That is matter for the mother for as a citizen she can live in Australia although I accept she no longer wishes to and that is her right as an adult.
To make an order in the child’s best interests requires a full determination, testing of the evidence and making findings of fact on significant and important factual disputes, the assistance of a Family Report and questioning of the report writer, the appointment of an ICL for the child. Such a process is inconsistent with making a summary order for her to return to a foreign country where she had lived for some six months albeit where her mother intends to live.
I have no evidence of the capacity of the father to enforce an order in the UAE if I were to order the child live with him in Australia or to enforce time arrangements that the court may make with the child in the UAE or for her to travel to Australia. He would need to rely upon the mother to comply with those orders. I have every confidence the reverse would be true if the Court ordered the child to live with the mother or spend time with her in the UAE.
To be fair to the mother, her conduct thus far has been of a parent wishing the child to have a relationship with the father and actively promoting that relationship. There is nothing to suggest the mother would not comply with an order made by an Australian court at a final hearing. However the parents past co-operative conduct may well have been damaged by this litigation. What had been a polite, courteous, respectful co-parenting arrangement may now be in jeopardy due to the actions of the father in absconding with the child from Country E to Australia and the mother’s change of plans. The trust the parties clearly exhibited in each other from the messages to each other in the past may now have vanished.
The child has lived in the UAE for six months, attended school and would have some friendships. However by not making the order the mother the seeks the reality is that she will be living in Australia, living at the former matrimonial home, attending the first school she attended in Australia and she will be returned to her roots in that sense.
The significant risks in this matter are clearly a separation from her mother who is her primary carer and the impact upon the child of that separation. I accept there will be difficulties for the child being separated from her mother however separation will be less than one year given I have expedited the hearing which will commence on 7 November 2022. Further, the mother is free to travel to Australia whenever she can to spend time with her daughter as she is a citizen of Australia.
When I weigh this risk for the child who has returned to her home in Australia and is living with her father, my real concerns in the absence of any evidence are:
(a)whether the UAE court tribunal or whatever mechanism is in place to resolve parenting issues will properly enquire into and determine the future final parenting arrangements;
(b)whether the father can fairly litigate parental issues in the UAE given he has no residential status like the mother;
(c)whether the mother can fairly litigate parenting issues in the UAE; or
(d)the enforceability in the UAE of any Australian order in respect of the child.
The evidence is silent in these important areas.
I have formed the view that it is not in the interest of the child’s welfare to accede to the mother’s request for a summary order for the child’s return. Further that having regard to the child’s best interests as my paramount concern this Court must determine these parenting issues at final hearing where the evidence is fully tested.
Although I accept this separation may cause emotional distress for a period of time for the child, the level of competence these parents have shown in the past satisfies me that the child make can live with either parent comfortably and that both parents will assist their child to make the necessary adjustments as they did when she went to the UAE.
As I have expedited the final hearing to commence 7 November 2022, appointed an ICL and ordered the preparation of a Family Report which the parents will equally share the cost of to enable me to properly enquire into and determine the child’s final parenting arrangements, the mother’s application that I make a summary order for the child to return to the UAE must be dismissed it not being an order in the child’s best interest
I will maintain the AFP Airport Watchlist Order and make the following pending further orders for the stability of the child:
(1)The child to live with the father in Australia.
(2)The child to spend time as agreed with the mother in Australia as frequently as the mother can return to Australia.
(3)The child have Skype or other such telecommunication time with her mother daily at a time convenient to the child.
(4)In the event the mother returns to Australia prior to the final hearing the order for the child to live with the father will be discharged.
(5)In that event if the parties are unable to agree on the child’s living arrangements they may contact my Associate to obtain an early interim hearing on that issue.
The court notes the mother will be returning to the UAE on Sunday, 19 February 2022, without the child.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 17 February 2022
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