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…
Continue reading Hadi & Kalar
Sign in free to access the full text
Details
- AGLC
- Hadi & Kalar [2022] FedCFamC1F 73
- Case
- [2022] FedCFamC1F 73
- Decision Date
CaseChat Overview and Summary
The case of Hadi & Kalar involved a dispute between the parents of a child over the child's return from the United Arab Emirates (UAE). The child had been living in Australia with her mother until she was taken to the UAE by the mother for a holiday. The father agreed to this arrangement, and later supported the mother and child financially while they were overseas. However, the mother later changed her plans and decided to remain in the UAE permanently, which the father did not object to at the time. The father subsequently sought an order for the child's return to Australia. The case was heard in the Family Court of Australia, where the legal issues centred on the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction and the best interests of the child.
The court had to determine whether the mother's decision to remain in the UAE constituted a wrongful removal or retention of the child under the Hague Convention. The court also had to consider whether returning the child to Australia was in her best interests. In making these determinations, the court considered the evidence and submissions from both parties, including the mother's psychologist report, letters to the Department of Immigration, and the parties' communications. The court found that the mother's decision to remain in the UAE constituted a wrongful removal or retention of the child under the Hague Convention, as the child had been habitually resident in Australia prior to the removal and the father had not consented to the removal.
The court also found that returning the child to Australia was in her best interests, as she had always lived in Australia with her mother and the mother had been her primary carer. The court noted that the child had been enrolled in a school in the UAE, but found that this was not a sufficient reason to override the child's best interests in remaining with her primary carer in Australia. The court made an order for the child's return to Australia, with the mother to have supervised contact with the child in Australia.
The court had to determine whether the mother's decision to remain in the UAE constituted a wrongful removal or retention of the child under the Hague Convention. The court also had to consider whether returning the child to Australia was in her best interests. In making these determinations, the court considered the evidence and submissions from both parties, including the mother's psychologist report, letters to the Department of Immigration, and the parties' communications. The court found that the mother's decision to remain in the UAE constituted a wrongful removal or retention of the child under the Hague Convention, as the child had been habitually resident in Australia prior to the removal and the father had not consented to the removal.
The court also found that returning the child to Australia was in her best interests, as she had always lived in Australia with her mother and the mother had been her primary carer. The court noted that the child had been enrolled in a school in the UAE, but found that this was not a sufficient reason to override the child's best interests in remaining with her primary carer in Australia. The court made an order for the child's return to Australia, with the mother to have supervised contact with the child in Australia.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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).
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.