HADRAMI & SAHRAWI

FAMILY COURT OF AUSTRALIA

HADRAMI & SAHRAWI

[2018] FamCA 10

FAMILY LAW – CHILDREN – International relocation – Risk to a parent – Capacity of parents – Nature of relationships – Significance of competing proposals – Uncertainties as to remaining in Australia
FAMILY LAW – FORUM - Determination of forum following full hearing of the matter

Family Law Act 1975 (Cth) – ss 60B, 60CC, 61DA(2) and 65DAC

M v M (1988) 166 CLR 69
U & U (2002) 211 CLR 238
ZP & PS (1994) 181 CLR 639

APPLICANT:

Ms Hadrami

RESPONDENT:	Mr Sahrawi
INDEPENDENT CHILDREN’S LAWYER:	Mrs J Lloyd

FILE NUMBER:

CAC230

2017

DATE DELIVERED:

17 January 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

21-24 August 2017 and 15 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Legal Aid, ACT

COUNSEL FOR THE RESPONDENT:

Mr Hassall

SOLICITOR FOR THE RESPONDENT:

Infront Legal

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

Orders

The wife has sole parental responsibility for B (‘B’) born … 2004, C (‘C’) born … 2008 and D (‘D’) born … 2016, (collectively ‘the children’).
The children shall live with the wife.
In the event that the husband and wife are living in the same country, the children shall spend time with the husband as follows:
(a) During school term time:
(i)With the children each Tuesday from 4pm until 6pm;
(ii)With B and C each alternate weekend commencing the first weekend of each term, from after school on Friday until the commencement of school the following week;
(iii)With B and C on the other weekend on Saturday from 10am until 6pm;
(iv)With D, each Saturday 10am until 6pm;
(b)During school holiday time for the first seven days of each school holiday period, commencing after school on the last day of term and ending at 3pm on the 7^th full day of the holidays;
(c)For the purposes of this order changeover shall occur at C’s school when he is in attendance at school and otherwise at a location as agreed or, failing agreement, within the Y Centre.
In the event that the husband and wife are not living in the same country, the children shall spend time with the husband as follows:
(a)On the husband providing 28 days’ notice in writing of his intended travel to Australia, for a continuous period of up to fourteen days, within Australia provided that:
(i)If it is school term time the husband shall ensure that the children attend school on school days; and
(ii)The husband provides the wife with details of where he and the children are staying and provides a contact number to the wife so that she may speak with the children at reasonable times during their time with the husband.
Regardless of where the husband and wife are living, the husband may spend time with the children by electronic communication with the children each Monday, Thursday and Sunday (unless they are otherwise with him) at 5pm in the time zone of where the children are living.
The wife is to facilitate the electronic communication with the children by the husband by:
(a)Providing a means for audio visual electronic communication for the children to use;
(b)Providing the husband with current details to enable the use of the electronic communication;
(c)Encouraging the children to communicate with the husband on each occasion;
(d)Minimising sources of distraction from the children during the communication.
The parties are at liberty to alter the arrangements for the time to be spent with the children by agreement in writing.
The wife shall provide to the husband all school reports and shall advise the husband of any major health issues within 14 days of being provided with, or the occurrence of such.
The wife shall authorise all schools and medical practitioners for the children to provide information to, and speak to the husband regarding the children and shall advise the husband within 14 days of their enrolment at any school or attendance upon any medical practitioner of the name and contact details of that school or medical practitioner.
Each party shall inform the other as soon as possible of any medical emergency in which any of the children are involved and require treatment with such information to include the name and address of any medical practitioner who provides diagnosis or treatment to any of the children and the parent shall authorise such practitioner to speak to the other parent.
Each party shall keep the other informed about any mobile telephone number on which they may be contacted.
Each of the parties is restrained from speaking ill of the other party or members of that party’s family to any of the children or in any of the children’s presence and they must take all steps necessary to prevent any other person from doing so.
The independent Children’s Lawyer is discharged effective twelve months after the making of these orders.

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 Hadrami & Sahrawi 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 CANBERRA

FILE NUMBER: CAC230/2017

Ms Hadrami

Applicant

And

Mr Sahrawi

Respondent

REASONS FOR JUDGMENT

Background

This is a dispute between Ms Hadrami (the mother) and Mr Sahrawi (the father) regarding their three children, B (born 2004), C (born 2008) and D (born 2016).
The parties are both from Country E. The mother and father arrived in Australia in July 2015 with B and C. The mother came to Australia ostensibly for the purpose of studying English, although she says that the true reason was to escape from difficulties in Country E, which she says put her in danger. The mother’s student visa expired 19 October 2016 and she has sought a protection visa. The mother and children are currently in Australia on bridging visas, pending the resolution of the mother’s application for protection visas.
Following their arrival in Australia, the father stayed for approximately ten days. The mother alleges that the father sexually assaulted her during this time. She alleges that he has been abusive to her throughout the marriage. He denies these allegations and asserts that the relationship was loving and supportive.
The father returned to Australia in March 2016 for the birth of the parties’ third child, D, on 30 April 2016, and then returned to Country E in June 2016. The father sought work in order to remain in Australia but was unsuccessful.
The mother sought a protection visa in October 2016 based on incidents occurring in Country E concerning her neighbour and the Country E police. There were discussions between the parties regarding the application for, and basis for the application for the protection visa.
The mother says that she told the father that the marriage was over in December 2016.
The father returned to Australia on 7 February 2017 without notice to the mother. She first became aware that the father was in Australia, when he went to B’s school with the intention of seeing B.
Following a series of conversations between the mother and the father, ultimately occurring at the Suburb G police station, the mother vacated her home and stayed with a friend, whilst the father stayed with the children. They dispute how long this arrangement was meant to be in place.
The mother stated that on 8 February 2017, upon learning that the children were not at school, she instituted proceedings in the Federal Circuit Court, motivated by the fear that the father would leave, and take the children with him back to Country E. At this time, the mother also applied for a Domestic Violence Order. She withdrew and then remade this application which was granted by the ACT Magistrates Court on 21 February 2017. The mother is residing in a refuge at the moment.
Orders were made by Judge Tonkin of the Federal Circuit Court on 9 February 2017 that the children live with the mother. The father was not in attendance at Court on this day.
On 20 February 2017 Judge Tonkin issued a recovery order for the return of B to the mother’s care, and made orders that the children live with the mother and that the father be permitted to communicate with the children each day at 8pm.
On 12 May 2017 orders were made in the Family Court of Australia that the children live with the mother and spend time with the father each Tuesday from 4pm until 6pm, with B and C to spend time with the father from 4pm each Friday until 6pm on Saturday and D to spend time with the father from 12pm until 6pm each Saturday. The children were permitted to spend additional time with the father as agreed between the parties.
On 3 July 2017 the orders for the time that the children were to spend with their father were amended for a short period incorporating holiday time. Until 18 July 2017 it was ordered that D spend time with the father from 1pm to 6pm on 3 July 2017 and from 8:30am to 2:30pm on 4 July 2017. C was to spend time with the father from 6pm on 3 July 2017 to 8:30am on 4 July 2017 and from 6pm on 10 July 2017 to 6pm on 16 July 2017, and B to spend time with the father from 1pm on 3 July 2017 to 2:30pm on 4 July 2017 and from 6pm on 10 July 2017 to 6pm on 16 July 2017. From 18 July 2017 the time that the children spend with the father continued in accordance with the orders made on 12 May 2017.
At the time of the hearing both parties remained in Australia on a temporary basis.
In general terms the contest between the parties is, on the mother’s part, that she remain in Australia with the children as their primary carer. On the father’s part it is that the children return to Country E, to live with him if the mother does not return, and to live with each of the parents on a shared basis if the mother does return, subject to some qualification.

Factual issues identified by the parties

Directions were given for the parties to identify the issues that they said required resolution at the trial. They prepared a joint list of issues which was filed on 18 July 2017 and which are set out in general terms below. These provide a useful basis to assist to identify key factual considerations for determining the best interests of the children, although they do not comprise an exhaustive list of the matters to be considered in this case in accordance with s 60CC:
a)The parties’ parenting capacity and attitudes to the responsibilities of parenthood.
b)The date of separation of the parties. There was a contest between the parties as to when it was communicated by the wife to the husband that the relationship had come to an end. It was also suggested that it was relevant to determine whether the wife had commenced a new relationship, although it was conceded by the end of the trial that such a new relationship has not been established on the evidence.
c)Whether the husband had committed acts of physical, sexual or emotional abuse upon the mother both in Country E and in Australia.
d)Whether there has been abuse of the children by the parties, or neglect of the children by the mother since arrival in Australia, or an abuse of the children by either parent by undermining their relationship with the other parent.
e)Issues relating to whether the children and the parents will live in Australia or Country E. These issues firstly related to the uncertainty with the mother’s proposal to remain in Australia and the question of the ability of the father to remain in Australia. Secondly they relate to whether the mother is likely to be able to return to Country E and if so, whether she would be free from harm there. Allied to this is a question of whether the mother has suffered sexual harassment by a neighbour in Country E or problems with the law enforcement authorities or government of Country E.
f)The parties also raise the issue of what support is available for the parties, what is the effect of potential separation between the children and a parent, the expense and practical difficulties, and the extent to which the parents will be compliant with orders in the event that the father returns to Country E without the children, if the mother remains in Australia without the children, or if the parties are either both in Australia or both in Country E.
g)In the event that both parents live in the same country, the parties further identified an issue as to the allocation of parental responsibility and as to how time ought be divided.
h)Lastly, the parties identified credibility issues arising from either the mother’s fabrication of violence by the father, or the father’s false denial of violence.

The applications of the parties

As indicated by Gummow and Callinan JJ, and separately by Hayne J in U & U (2002) 211 CLR 238, due account must be taken of the positions of the parties, the evidence led, and arguments pursued as aspects of adversarial litigation even in child related proceedings. They do not constitute the boundaries for the making of a decision, as those boundaries are set out by the legislative considerations, objects, and the requirement that the orders regard the child’s best interests as the paramount consideration. However, in this context, as set out by Gummow and Callinan JJ, “the Family Court is obliged to give careful consideration to the proposed arrangements of the parties.” The proposals were as set out below.

The Applicant Mother’s Final Orders Sought

1.That the parents shall have equal shared parental responsibility for the children, [B], born … 2004 (“B”), [C], born … 2008 (“[C]”) and [D], born … 2016 (“[D]”) (collectively known as “the children”).
2.That the children be permitted to remain in Australia and not be ordered to return to [Country E].
3.That the children live with the mother.
4.The children spend time with the father as agreed between the parties and failing agreement as follows:
a.In relation to [B] and [C] each alternate weekend between 4pm Friday (or otherwise agreed) and 6pm Sunday and each Tuesday between 4pm and 6pm;
b.In relation to [D] each alternate Saturday between 9am and 4pm and each Tuesday between 4pm and 6pm;
c.During the NSW or ACT Gazetted school holiday periods as agreed between the parties.

5.That within 12 months of these Orders the parties completing the Assisting Responsible Care for Kids program or similar program.
6.That the father is at liberty to telephone the children or communicate with them electronically each Thursday and Sunday at 5pm.
7.That changeover for the purposes of these Orders occur at [Suburb H].
8.That without admissions the father is hereby restrained from physically disciplining the children and neither party shall allow a third party to physically discipline the children.
9.That each party shall inform the other as soon as possible of any medical emergency in which any of the children are involved and require treatment with such information to include the name and address of any medical practitioner who provides diagnosis or treatment to any of the children and the parent shall authorise such practitioner to speak to the other parent.
10.That each party shall keep the other informed about any mobile telephone number on which they may be contacted.
11.That each of the parties is restrained from speaking ill of the other party or members of that party’s family to any of the children or in any of the children’s presence and they must take all steps necessary to prevent any other person from doing so.
12.That as soon as practicable following any change, both parties will notify the other of any change to email address or telephone number.

In the event father is required to return to [Country E]
13.That the mother have sole parental responsibility for the children, [B], born … 2004 (“[B]”), [C], born … 2008 (“C”) and D, born … 2016 (“[D]”) (collectively known as “the children”).
14.That the children be permitted to remain in Australia and not be ordered to return to [Country E].
15.That the children live with the mother.
16.The children spend time with the father as agreed between the parties and failing agreement as follows:
a.Once every year for a period of 2 weeks with such time to be spent in Australia;
b.That the father provide an address and itinerary to the mother 28 days prior to the father spending time with the children.

17.That within 12 months of these Orders the parties completing the Assisting Responsible Care for Kids program or similar program.
18.That the father is at liberty to telephone the children or communicate with them electronically each Tuesday, Thursday and Sunday at 5pm (Australian Eastern Standard Time).
19.That without admissions the father is hereby restrained from physically disciplining the children and neither party shall allow a third party to physically discipline the children.
20.That each party shall inform the other as soon as possible of any medical emergency in which any of the children are involved and require treatment with such information to include the name and address of any medical practitioner who provides diagnosis or treatment to any of the children and the parent shall authorise such practitioner to speak to the other parent.
21.That each party shall keep the other informed about any mobile telephone number on which they may be contacted.
22.That each of the parties is restrained from speaking ill of the other party or members of that party’s family to any of the children or in any of the children’s presence and they must take all steps necessary to prevent any other person from doing so.
23.That each party shall inform the other within 24 hours of any medical appointments at which either of the children attend including the name and address of any treating medical practitioner and the relevant parties shall authorise any treating medical practitioner to speak to the other parent.

The Respondent Father’s Interim Orders Sought

Although these were conducted as final proceedings, the husband sought that his interim orders be dealt with on a final basis as an aspect of dealing with forum.
1.That the Court (in the exercise of its welfare jurisdiction conferred by Pt VII of the Family Law Act 1975 (Cth) make a summary order that [B] (born … 2004), [C] (born … 2008) and [D] (born … 2016) (“the children”) be returned to [Country E] so that questions concerning parenting matters may be dealt with by the courts of that jurisdiction.
2.Further to Order 2:
a.That the children’s names be immediately removed from the Family Law Watchlist maintained at all points of departure in Australia by the Australian Federal Police.
b.That within 48 hours of these orders the mother surrender the passports of [B] born … 2004 and [C] born … 2008 to the Registrar of the Family Court, where they are to be made available for collection by the father or the father’s solicitor.
c.That the father forthwith do all things necessary to obtain a passport for [D] born … 2016.
d.That within 14 days of the date of these orders the mother advise the father in writing whether she wishes to accompany the children to [City I, Country E] pursuant to order 1 above.
e.That, if the mother chooses not to accompany the children in accordance with order 2d. above, the father do all acts and things necessary to ensure that he accompanies the children to [City I Country E] pursuant to order 2 above.
f.That within 28 days from the date of these orders the father do all acts and things necessary, including booking and paying for airline tickets, for the children, and (as applicable) either the mother or himself, to accompany the children to [City I, Country E].
g.That, if the mother chooses to accompany the children in accordance with order 2(d) above, within 28 days from the date of these orders, the mother is to do all acts and things necessary to facilitate her return to [City I, Country E], in the company of the children.
h.That pending the departure of the children from Australia the Court’s interim parenting orders regarding the children made on 12 May 2017 are to remain in force.
i.That, upon departure of the children from Australia, all previous orders in the proceedings are vacated and all outstanding applications of the parties are dismissed.
j.That liberty be granted to either party to restore the matter on 48 hours’ notice.

The Respondent Father’s Final Orders Sought

3.Orders in accordance with paragraphs 1 and 2 above.
OR, IN THE ALTERNATIVE (IF THE COURT FINDS THAT IT IS IN THE BEST INTERESTS OF THE CHILDREN FOR THE COURT TO MAKE FINAL ORDERS IN AUSTRALIA):
4.That the parties have equal shared parental responsibility in relation to the children.
5.That the children live with the father in [Country E].
6.Further to Order 5:
a.That the children’s names be immediately removed from the Family Law Watchlist maintained at all points of departure in Australia by the Australian Federal Police.
b.That within 48 hours of these orders the mother surrender the passports of [B] born … 2004 and [C] born … 2008 to the Registrar of the Family Court, where they are to be made available for collection by the father or the father’s solicitor.
c.That the father forthwith do all things necessary to obtain a passport for [D] born … 2016.
d.That within 28 days from the date of these orders the father do all acts and things necessary, including booking and paying for airline tickets, for him and the children to return to [City I, Country E].
e.That pending the departure of the children from Australia the Court’s interim parenting orders regarding the children made on 12 May 2017 are to remain in force.
f.That liberty be granted to either party to restore the matter on 48 hours’ notice.

7.That the children spend time with their mother:
a.If the mother returns to [Country E] – as often as the mother wishes; and
b.If the mother remains in Australia:
i.By telephone, Skype or other form of telecommunication as agreed between the parties but failing agreement no less than twice per week for a period of at least ten minutes for each child;
ii.Whenever the mother is able to travel to Country E – as agreed between the parties but failing agreement as often as the mother wishes.

IN THE ALTERNATIVE TO PARAGRAPHS 5 & 6 (IF THE COURT FINDS THAT IT IS IN THE BEST INTERESTS FOR THE CHILDREN TO REMAIN IN AUSTRALIA, AND ON THE ASSUMPTION THAT THE MOTHER AND THE CHILDREN ARE PERMITTED BY AUSTRALIAN AUTHORITIES TO REMAIN IN AUSTRALIA):
8.That the children live with the mother.
9.That the children spend time with the father as follows:
a.For as long as the father is able to remain in Australia, in accordance with the orders of the Court made on 12 May 2017;
b.During subsequent periods if or when the father is able to spend time in Australia – as agreed between the parties;
c.If or for the duration of such periods in which the father returns to [Country E], by telephone, Skype or other form of telecommunication: as agreed between the parties but failing agreement no less than twice per week for a period of at least ten minutes for each child.

By the end of the trial the Independent Children’s Lawyer’s position was that an order ought be made such that the children would be caused to live in Country E.
In response to this, the husband indicated that, if the children were to return to Country E, and the wife was also to return, he would not oppose a 5:2 split of time with the children living predominantly with the wife.

Material relied upon

List of material relied on by applicant[1]

[1] Applicant Mother’s Case Outline Document filed 14 August 2017

(a)Family Report, 7 June 2017, Ms J
(b)Affidavit of Ms Hadrami sworn 9 August 2017
(c)Amended Application for Final orders filed 14 June 2017

List of material relied on by respondent[2]

[2] Respondent’s updated case outline filed 18 August 2017

(a)Amended Response filed 5 June 2017.
(b)Notice to Admit Facts and the Genuineness of Documents filed 4 July 2017 and copies of exhibits referred to therein.
(c)Affidavit of Respondent filed on 10 August 2017 (and associated affidavit of Ms F filed on 10 August 2017 regarding use of telephone interpreting service).
(d)Affidavit of Mr K filed 10 August 2017.
(e)Affidavit of Mr L Sahrawi filed 10 August 2017 (and associated affidavit of Mr M filed 10 August 2017 regarding translation).
(f)Affidavit of Mr N filed 10 August 2017 (and associated affidavit of Mr M filed 10 August 2017 regarding translation).
(g)Affidavit of Mr O Sahrawi filed 16 August 2017 (and associated affidavit of Mr M filed 16 August 2017 regarding translation).
(h)Affidavit of Mr P Sahrawi filed 16 August 2017 (and associated affidavit of Mr M filed 16 August 2017 regarding translation).

During the trial expert evidence and a report in relation to migration was taken from Mr Q.

Forum

It may be seen that the first remedy sought by the husband is for the summary return of the children for the matter to be dealt with in Country E. This was the remedy sought by the husband at the outset of the proceedings, although the pursuit of this remedy was abandoned in the interim on the indication of a potential early trial date for the matter. The application was renewed for the final hearing of the matter.
The High Court dealt with the question of forum in a children’s’ case in ZP & PS,[3] where Mason CJ, Toohey and McHugh JJ stated (omitting citations):
8.… It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
9.However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a 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 so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.
[3] (1994) 181 CLR 639
Chief Justice Mason, Toohey and McHugh JJ continued that even where such a matter is not dealt with as a threshold issue, it may be dealt with later in the case, once the court has commenced to hear the matter as “(f)urther investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.”
In the same case Brennan and Dawson JJ noted that:
7… it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody.
That appropriateness is governed by whether it is for the welfare of the child that the courts of the other jurisdiction determine the matter.
It was identified that a “speedy return” without full inquiry may be called for as being in the interests of a child, but it is the unique circumstances of the case that will determine whether this is so. The particular context of “speedy return” is suggestive that one consideration is the circumstance of where a child has only recently been removed from the child’s usual country of residence.
When seized of jurisdiction it is the obligation of the Family Court to exercise the jurisdiction unless it is determined that it is not in the interests of the children to continue to exercise the jurisdiction beyond making an order for the summary return of the children.
The reasons identified by the husband are set out in his updated case outline filed 18 August 2017 and in oral submissions. The reasons were intermingled with reasons put forward for a return following a full hearing of the matter. They include that the children are Country E citizens, with uncertain capacity to remain in Australia, that there is uncertainty regarding the capacity of either parent to remain in Australia. They included a number of matters for which determination was sought in the substantive case, including whether the mother had invented allegations against the father, questions over whether the mother would return to Country E, and a lack of connections to Australia.
It is important to bear in mind that this is not an “abduction” case as referred to in ZP & PS, the children having been brought by consent. Categorization as an abduction case or otherwise is not necessarily determinative of the issue of summary return, but may assist in informing the consideration as to whether speedy return is in the children’s best interest because of the disruption to the children occasioned by such an act. In this case, the children are well settled in Australia. D has spent his entire life in Australia. It was intended by the parents that the children should be in Australia for an extended period. They both took steps to extend the period when the study visa was shortly to lapse.
Further, the parties were both present for the Family Consultant report writing process, for the lead up to the trial and the trial itself. There has been a full hearing of the matter, in which a major matter was whether it is in the children’s best interests to remain in Australia.
Where the children can be said to be well settled in Australia, and a full hearing has been conducted directed to dealing with the issues that the father says go toward a return to Country E, it has not been demonstrated that it is in the children’s best interests to order summary return without a determination of their substantive welfare issues.

The trial

As indicated above, the parties indicated a number of issues they considered to be necessary for the resolution of the case. These, and other matters, are dealt with below.

Issue - The parties’ parenting capacity and attitudes to the responsibilities of parenthood.

This matter will fall for consideration following resolution of the factual matters that underlie this issue.

Issue - The date of separation and potential entry into a new relationship.

Dealing firstly with the proposition that the mother has entered in to a new relationship. At its highest, evidence was led to show a significant number of telephone calls to a particular number over a short period of time late at night, and the mother being away from the home overnight leaving B to care for the younger children. These may point to a new relationship but do not establish it to be so. It was accepted by the father that such a new relationship had not been proven. In any event, the question of whether or not a new relationship was formed does not appear to have importance to establishing what is in the best interests of the children. The issue of the mother leaving the younger children in B’s care overnight is.
The issue of the timing of the end of the relationship is more difficult. It draws its significance from an apparent continuation of the relationship after the time the wife asserted it was over, leading to the suggestion that the application for a protection visa, partly on the basis of issues with the father, is disingenuous.
In her affidavit material the wife says that she told the husband that the marriage was over in December 2016, when she told him that she would no longer wear the hijab. She says that he then threatened to kill her, threatened to take the children, and reduced the amount of money he was paying to support the wife and the children.
In her applications for domestic violence orders, made on 9 February 2017 (withdrawn, according to the wife because of contact from the Country E embassy) and made again on 21 February 2017 the wife relied upon a document setting out the circumstances of the application. That document alleged separation in about August 2015.
The husband says that he did not regard the parties as separated until some time after his arrival in Australia in February 2017. In support of his view he annexes messages exchanged by the parties. He also points to the ongoing financial support that he was asked for, and gave, after the date the wife nominates as being the date of separation.
The wife accepts that the husband continued to make payments to her until 31 January 2017, although she says that they were reduced following her telling the husband that the relationship was over. As late as February 2017 the wife was messaging the husband asking for the transfer of money (see husband Annexure BIS 2-16).
By way of example of the messages the husband annexes at BIS 1-11 p135ff, messaging between the husband and the wife continuing into January 2017, with the wife messaging the husband that she loves him, adores him, referring to him as “sweetheart.”
It appears that by the time the husband travelled to Australia, he was aware that there were some problems in the relationship with the wife. It is not clear that he knew that the marriage was over until after he arrived in Australia. The communications by the wife bear the hallmarks of an ongoing relationship. The wife says that it was a ruse. Certainly, when the husband arrived in Australia the wife had no intention of continuing the relationship.
The key issue however is not when each party regarded the relationship as over, but is whether the husband dealt with the wife in the manner she alleges. If he did, the timing of the end of the relationship is of little importance. If he did not, then both the claims as to his conduct and the explanation for the wife’s conduct around the time of the end of the relationship are disingenuous. It is not of assistance to establish, independently from dealing with the allegations against the husband, whether the relationship ended in December 2016, with the wife participating in a ruse to keep the husband satisfied that she was still following him, or the relationship ended in February 2017 and the wife is now being deceptive about that (along with the allegations of abuse) to shore up the protection visa claim. It is the underlying facts as to the conduct of the husband that carry significance. While the conduct of each party at the end of the relationship may throw light on those allegations, the conduct pointed to here is consistent with either account or explanation.

Issue - Whether the husband had committed acts of physical, sexual or emotional abuse upon the mother both in Country E and in Australia.

Significant family violence is alleged to have occurred during the relationship, ranging from the husband belittling and verbally demeaning the wife, through to physical and sexual violence.
The wife alleges that the husband has hit her, leaving bruises, forced her to have sex with him if she refused his requests, forced her to participate in group sex and filmed sexual acts involving the wife, placing the recordings on the internet.
The husband denies having done these things.
The wife was challenged as to her assertions. Firstly, in her application for a protection visa she said nothing of these allegations. The matters that she raised related to the neighbour and the Country E government, rather than to the husband. It was suggested to her that the incident that she complained of in relation to the neighbour was trivial in comparison to what she now alleges against the husband. She agrees that this is so but asserted that her experience of the abuse was like a “ladder” where she had reached the point where she could not take it any longer. Under circumstances where the alleged sexually abusive conduct by the husband was significantly more serious than the alleged sexually abusive conduct of the neighbour, and where the wife, on her account shortly after lodging the application for the protection visa, told the husband that the relationship was over, this undermines the credibility of the wife’s claims in respect of the husband.
The wife was criticised for failing to take these matters up with Australian authorities once she was away from the husband. She explained that she was unfamiliar with the Australian system. As a newcomer to Australia, it is understandable that she may not approach the authorities in relation to these matters. This does not undermine her credibility.
Allegations that the husband had been violent in the relationship, including having forced the wife to have sex with him, first appear to have arisen in February 2017 at about the time the husband arrived in Australia and about the time the wife made application to the Federal Circuit Court regarding the children, and to the Magistrates Court of the ACT regarding an interim domestic violence order. The timing of the raising of the allegations is a neutral matter. It is both consistent with this being the first occasion that the wife was in direct contest against the husband, a contest in which such matters are directly relevant, and consistent with a fabrication to support an exclusion of the husband for other reasons.
The wife accepts that the allegations of forced participation in group sex and video recording for the internet were not made in her affidavit of 8 February 2017. The late introduction of these allegations significantly erodes their cogency. If true, they were relevant to the applications to the Magistrates Court and the Federal Circuit Court at that time and were of a similar nature to the matters that were then claimed. Additionally, there is no particularity, or adequate description of these particular allegations to permit findings that the conduct occurred.
In the proceedings it was asserted by the wife that on a number of occasions the husband had said to the wife that he would kill her. One particular incident is alleged to have occurred while they were both attending Court for the Federal Circuit Court proceedings earlier this year. It was alleged that in the foyer of the Court the husband said the wife that he would kill her. He denied that this was the case and relied upon annexure BIS 2-17 which was a set of exchanges by text between he and the wife at that time. While not conclusive as to whether or not such a threat had been made, the tone of the texts is markedly different to what was alleged against him in terms of the threat.
The wife says that in or about December 2016 she told the husband that the marriage was over saying “I’m not going to wear the hijab any more. It is my decision. Consider us divorced. Our marriage is over that’s it” to which he is said to have replied “I am not going to send you money. I am going to take you and the children whether you like it or not. If I have to I will kill you.” The wife says that she was scared and so took back what she had said about the end of the relationship. She agrees that after this date she continued to send messages to the husband saying that she loved him, but explained this on the basis that she said that he threatened to kill her. The husband continued to pay money to the wife, she says that the amount was reduced from what he previously paid such that he paid, on 3 January 2017 the amount of $30, on 16 January 2017 the amount of $650 and 31 January 2017 the amount of $1,100. This, she says was the last payment that she received from him.
Despite the assertions of difficulties in the relationship, the wife agreed that on 1 October 2016 she sent the image to the husband contained exhibit H1 Tab 1(b), being an image in which she exposed her breasts. She said that she did this out of fear of the husband, because he had asked her to send the picture, and because she wanted to show that she was still following him. She accepted that there had been a sexually explicit exchange between them[4] but said that this occurred out of fear of the husband and simply to show that she obeyed him. In explaining how it was that she had come to be afraid of the husband on those occasions she indicated that he had been threatening her. When asked why she produced no evidence of these threats she initially gave evidence that there was no evidence because they had not been made through text messaging. Rather, she said, he calls and swears at her. When further challenged as to the absence of supportive evidence she then indicated that she did not have the evidence as her phone had reformatted and in the process of doing so she had lost the evidence that might support this. These two explanations conflicted.
[4] (see also p 125 exhibit H1)

The mother asserts that the father has sexually assaulted her on a number of occasions. She nominates a particular occasion being when she, the father and B and C travelled to Australia for her to commence her studies. She identifies that on that occasion she was forced to have sex with the father. The father led evidence at exhibit 8 of BIS2 in his affidavit of 9 August 2017. The exhibit contains a picture taken by the mother of the father boarding a bus with the mother saying “my husband returned to City I and took my heart with him”. The mother agreed that she had written this. She accepted that this message occurred shortly after the time at which she asserts that she was raped by the father and asserts that she did not mean what was contained in the message.
The mother also accepted that in January 2017 she had sent a picture of herself in the shower to the husband, because he had asked her to (exhibit H1 tab 1B page 137). She says that he threatened that if no picture was provided he would not provide her with any money. Again these threats were not shown. The mother asserted that the threats were made by telephone and that he had threatened to grab her hair and that he would kill her. She accepted that this was the first time that she had asserted this, but asserted that this was now the opportunity for her to give the details.
The explicit exchange between the parties does not sit comfortably with the mother’s assertion that she had communicated a breakdown of the relationship in December, particularly given the variable explanations by the wife as to why she provided no evidence of the alleged threats made by the husband. The assertion that she told the husband of the end of the relationship in December 2016 also sits uncomfortably with the fact that the husband continued to send financial support for the wife and children through to the end of January 2017.
There is reason to be cautious in respect of the wife’s evidence in respect of the interaction between the parties at this time.
Pivotal in an assessment of the claims by the wife of violence by the husband are transcripts of a voice recording of a conversation at exhibit H1 tab 6 between the husband and the wife on 17 February 2017. While the wife now knows that the conversation was recorded, there is no suggestion that she was aware, at the time, that she was being recorded. Clearly the husband was aware.
The conversation covers the application for a domestic violence order, the timing for the husband to leave the country, and the wife’s concern that he may go to a Department to undermine her prior to his departure. In those messages the wife says that she does not want to hurt the husband, but may be forced to obtain the domestic violence order so that it did not appear that she “agreed” with the husband. She says the “matter is about getting the (permanent) residence…no other thing” rather than being about going “against” the husband.
The wife continues to say that, despite what she has reported about the husband, in the future to support his entry into the country she will assert that they have reconciled.
These comments give the impression that the claims against the husband may have been made for the ulterior purpose of obtaining the protection visa.
At the conclusion of the conversation the wife says “(y)es, I lie. Yes, I lie. I have to protect myself. One would use any way to protect herself and her children.” In her affidavit evidence [58] the wife asserts that she said this out of frustration, in an attempt to have the husband leave the country. The explanation given by the wife does not sit well with the place of the admission within the conversation.
In that same conversation the husband raised an allegation the wife made that he beat her and forced her to have sex with him when in Australia in 2015 (page 168). The wife responds saying that the husband did not beat her. This, in context, is not an assertion that the husband at no stage beat her, but that, on the occasion that she alleges she was forced to have sex with him in Australia he did not beat her. She had previously made no assertion that occasion involved beating. No inconsistency arises.
The husband then asked whether he had ever forced the wife to have sex. Her response (p169) was “you always force me” by psychological means. Her account was that there was no beating or forcing the wife onto the bed. The psychological force was that if the wife did not make him “feel relaxed and happy in sex” “tomorrow the house of my family will be destroyed” and her freedom would be restricted with “no going out or in.” The wife said “(a)ll of this is rape, by the way, because it was not up to me.” The husband’s response was “(a)lright, [Ms Hadrami]. Since this matter happened before we came here, what relevance does this discussion have?” She responds that it was because she had been asked for examples of mistreatment while they were in Country E.
Careful consideration must be given to the husband’s response. The wife’s assertion is of coercive or controlling behaviour regarding sex. The husband’s response appears to accept that this was a feature of their relationship in Country E. His response, on its terms, accepts that it occurred, but questions the current relevance of it.
The wife further asserts in this conversation that the husband has threatened to kill her on many occasions. This assertion was the subject of dispute by the husband during the conversation. The dispute in relation to this aspect contrasts with the apparent acceptance in relation to the sexual abuse issue.
In support of her assertions of family violence, the wife said that the husband’s relatives, being in particular his sisters and his mother, were aware of his misconduct towards her. Her evidence was that they had each questioned why she persisted in the relationship and that they told the husband to treat her better.
The context for this was the closeness of relationship said to exist between the wife and the husband’s sisters and mother. The husband said that the wife was loved by his family. This appears to be an unchallenged position as his mother and two sisters were cross-examined on the basis that there was a closeness of relationship between them and the wife. They indicated variously that they regarded her as close, as a sister-in-law, a sister or a daughter. Each denied knowledge of mistreatment of the wife by the husband and specifically denied having spoken to the wife in the terms that she suggested. This undermines the wife’s claims regarding violence.
The wife claimed that the husband exercised control over her in Country E, including, in particular, withholding permission for her to work for a period.
It was suggested to the husband in cross-examination that he had withheld permission for the wife to work after they married. Although a little unclear, it appears that there is some form of requirement, perhaps best expressed as a moral requirement, that permission be given to a woman to work. He did not accept that there was a formal requirement for permission to work for a woman, but indicated that asking for permission was a matter of respect and, in his family, it was better characterised as a process of consultation. He denies that he withheld such permission.
He was further cross-examined as to other restrictions that may be met by women in Country E and accepted that a woman needs permission to drive although he thought that this may be a matter that would change in the future. He denied there was a strict dress code that was enforced by the religious police. He accepted that it is necessary that a woman receives consent in order to obtain a passport for overseas travel, but noted that he had not presented as an obstacle for the wife travelling to Australia in order to study. To the degree that there are restrictions upon women he indicated that he did not like those and did not like the fact that they may apply to his daughter but hoped that she would respect the law of the land in which she was living.
His was questioned about his view about whether or not the wife ought to be grateful to his family for what they have provided for her. Presumably this cross-examination was directed towards the question as to whether or not the husband has a controlling attitude to the wife. To this end the husband denied trying to control the wife. His view was that his family had a duty to serve the wife and so the question as to whether or not she should be grateful was a difficult one to answer. While he accepted that he thought that she should be grateful, he thought that his family had a duty to provide for her and that it was ultimately up to her whether or she would be grateful. There was nothing suggestive of a controlling attitude in his response.
He denied verbal abuse and when questioned as to his attitude as to whether or not she was his equal indicated that he considered her to be his equal if not even higher that. He denied that he thought of her as being the daughter of an illegitimate relationship, indicating that he would not have married her if he thought that was the case.
Again, presumably in relation to the issue of whether or not he had an attitude of controlling the wife, he was cross-examined as to his initial application before the Court which included provisions that he and the wife would live under the one roof. He indicated that his position had changed and that application had been made when he thought (despite that fact the wife had commenced proceedings) that there were not, in reality, problems between them. He continues to believe, despite the wife saying that she hates him, that is not her true position and indicates he will keep the channels open between them, but will not do so in a manner which is annoying to her.
The husband was further cross-examined about his attitudes towards the wife, and B for that matter, wearing a hijab. He agrees that in December 2016 the wife sought permission from him to cease wearing her hijab in Australia. He says that he gave her permission, but preferred to characterise the interaction as one of consultation. He did not intend to force B to wear the hijab.
The wife further alleged in her affidavit that, on accessing her home in Australia in February 2017, the husband trashed the home. The husband presented evidence at the trial, of a video showing the home in disarray. He says that when he arrived the home was in an extremely untidy state with mattresses, clothing other items strewn through various rooms. He accepted that he had stayed within the house for a period of about 9 to 13 February 2017 and that the mess had remained throughout the period of time that had stayed there. He did not clean the mess up, although he asserted that he had told the wife that he wanted to have contractors come in to clean the apartment. He asserts that he did not take this step as the wife had said that he was prohibited from doing so and, being in a strange land, he thought that he could not. I am not able to make findings on this incident in the face of the conflicting evidence.
However, even absent findings as to why the home was in such disarray, the husband was in this home with the care of the children for an extended period. That is, while the home was in what he considered to be an unacceptable state, he continued to leave it in that state while he cared for the children there.
He was cross-examined as to whether he had represented to the Australian Muslim community that the wife is now an immoral person who no longer practices the Muslim religion. He denied that he regarded her as being immoral and further denied having formed the view that she had ceased to be a practising Muslim. Rather, he indicated that like anyone else, she probably did not do enough in relation to her religious belief.
Importantly, on the issue of control, the husband allowed and supported the wife in her travel to Australia, he says for the purposes of study. This counters to some degree the notion that the husband seeks to control the wife.
It should be acknowledged that the evidence in respect of family violence in this case is contradictory. There are matters that significantly undermine the wife’s claims against the husband. The testimony of his relatives, his denials, and the changing landscape of the allegations, and the wife’s acceptance to the husband that she lies in order to protect herself and the children all act to undermine the wife’s accounts that the husband assaulted the wife, or forced her to participate in group sex, or be video recorded for the internet.
On a number of matters it is not possible to prefer one account over another, for example, in relation to the contest as to whether the husband gave or withheld permission to work, or whether he has threatened to kill the wife.
One aspect does have cogency. This is the issue of forcing the wife to have sex. While it cannot be sustained that the husband physically forced the wife to have sex with him, he appeared to accept that he had behaved in a psychologically coercive manner to secure sex from the wife. It is conduct that tends toward the vitiation of consent and which trespasses upon an intimate aspect of a person’s life. It has significance not simply because it is connected to sexual conduct, but because of its coercive, controlling nature which, whether it is connected to sexual acts or not, constitutes family violence under the Family Law Act.

Issue - Whether there has been abuse of the children by the parties, or neglect of the children by the mother since arrival in Australia, or an abuse of the children by either parent by undermining their relationship with the other parent.

The husband is alleged to have assaulted B while she was in his care on 17 June 2017. The wife’s report is contained at [42] and following. She reports B as saying “(h)e grabbed my arm then took my phone off me and hit me on the head with it.” Tender bundle tab 12 contains the police incident report that alleges that while the children were in the husband’s care the husband assaulted B by grabbing her by the wrist. It was alleged that the father and B argued about B not answering the father’s questions, and about her use of her phone. It was alleged that the husband threw the telephone at B.
B was unable to describe how her father threw the phone, but that it hit her on the head. No mark was visible. The husband at [146] denies that he assaulted B.
The evidence does not permit a finding to be made one way or another about this alleged incident. The evidence supporting the incident, and the reasonably isolated nature of the allegation is not such as to suggestive of any significant risk of abuse of B by the father.
On the issue of neglect, the husband alleges that, while in Australia, B has been inappropriately tasked with the care of her younger siblings while the mother is out of the home. The wife was cross-examined in relation to her telephone records contained at exhibit C2 to tab 13. The wife accepted that those were her records but was unable to identify whether or not a particular number (ending “786”) belonged to B. She did however accept that there were times when she would call B after 10pm and sometimes even after midnight. She did not accept that this had occurred as a result of her being out of the home at those times but said that sometimes she would call B in the next room rather than calling out to B. It is to be noted that for a significant period of time the wife and children have lived in an apartment. The apartment has two bedrooms which the wife shares with the two boys with B having her own bedroom. This evidence raises the question as to whether or not B has been left to care for the children late at night.
B had contact with the school psychologist on 9 February 2017 shortly after the husband came to Australia (Tender bundle tab 20). At this time B had been in her father’s care for a short period of time. She told the psychologist that her mother would come home from work at 5pm, then after 10-15 minutes going to her friend’s place until the next morning, leaving B to care for the younger children overnight. This included feeding D formula overnight. She said that her mother would return in the morning to look after D so that she and her brother could go to school.
In her affidavit of May 2017 the wife said that she had done no paid work since arrival in the country. This was, she accepted, incorrect, the wife having worked from 19 December 2016 to 10 February 2017, a period of almost two months. She had corrected this matter in her trial affidavit. Messages between the wife and the husband during this time show periods when the children were left at home ill. Absent more information about the illness, this does not constitute unequivocal evidence of neglect on the part of the wife. Working parents will often be faced with difficult choices between attending work and being at home to care for children. These matters often involve a judgment call based on the particular circumstances of the child and the illness. Without an understanding of those circumstances in this case, judgment as to whether it constitutes neglect is not available.
The extract of school records of both B and C (Tender bundle tabs 19 and 21) show a significant number of absences from school in November 2016. While not definitive, the records reinforce the question of the capacity of the mother.
The evidence supports the conclusion that B, then aged 12, was left to care for her younger siblings then aged 8 and 1, overnight, apparently repeatedly. This raises an issue of neglect on the part of the mother.

Issue - Is the mother likely to be able to return to Country E and if so, will she be free from harm there?

A determination of the matters raised by the wife as preventing her return by this Court does not determine whether the wife will return to Country E. Her return is governed by two other factors. The first is whether she will be returned by compulsion by the migration authorities, or whether she will be granted a protection visa. Findings made by this Court do not determine that outcome, nor do they necessarily influence that outcome. The second factor relies upon the choice of the wife to return.
There was no evidence to suggest that the wife will, absent compulsion from the migration authorities, depart Australia for Country E. No part of her case suggests that there is a possibility of return. When cross-examined about the prospect of return, she declined to entertain the possibility.
While under cross-examination the wife asserted that while she would previously have returned if the issues that flowed from the neighbour were resolved, her view was that she could now no longer return in any event.
There is no evidence from which it may be inferred that she will return to Country E. In the face of these circumstances it cannot be assumed that an order for the children to return would also cause, or even be likely to cause the mother to return. Her application entertains no such possibility.
It is not open, given the above factors, for the Court to contemplate an outcome based upon the possible return of the wife to Country E other than as a product of compulsion by the migration authorities.
Under such circumstances there is limited utility in dealing with the aspects of the case that focus on an inability to return. The particular circumstances relied on by the wife to demonstrate that she cannot return relate to the alleged incident with her neighbour and alleged interaction with Country E authorities. Insofar as the husband may present an impediment to return, that may impact upon issues to do with his capacity to parent and questions of risk of exposure to family violence. That issue will be dealt with separately.
The limited utility may be derived from four matters. It may bear upon the circumstances of the wife should she be returned by compulsion. It may bear upon questions of reasonable practicability to the extent that they arise, although it is difficult to see that they take it further then the wife’s current position regarding returning to Country E. It may bear upon an assessment of the wife’s support of the relationship between the father and the children. It may bear upon an assessment of the credibility of the wife.

Allegations involving the neighbour

The wife’s evidence is that her reason for coming to Australia was in response to her neighbour’s conduct toward her. She says that one of the neighbours, Mr R, in the block of approximately five apartments that she and the husband lived in, being a neighbour who also lived on level one, the ground floor, as did the wife and husband had made a number of comments to her about her body. He subsequently touched her in the left collarbone region, at which stage she pushed him away. She was concerned that he would try to touch her breasts.
The wife was challenged on this account in a number of respects. She was challenged for not raising the neighbour’s conduct with the husband’s father who owns the complex. She explained that the incident was an honour-based matter and that as her husband knew, it was not a matter for her to raise, as opposed to the husband raising it with his father. This appeared to be a reasonable basis to not raise it with her father-in-law.
It was also put to her that there was no such neighbour, supported by the assertion that the other ground floor apartment in the complex was occupied by the husband’s brother and his family. The wife accepted that the brother and sister-in-law had lived there at some stage but said that they had departed from that property years prior.
The further challenge put to her was that this incident formed the initial basis for her application for a protection visa and in that application she had asserted that the neighbour had tried to touch her rather than that the neighbour had touched her. The mother accepted that the original account given by her in Arabic in the application said that the neighbour had “tried to touch” her. Her explanation for this inconsistency was that she had tried to write the matter simply and planned on talking at more detail when interviewed. In her application for the protection visa the wife described the man as living on the third floor. This constituted a significant inconsistency with her account to this Court.
The wife says that in response to this incident with the neighbour she sought a study visa. She was challenged as to why she applied for a study visa rather than a visa based upon the incident with the neighbour. She explained that the reason for seeking that visa rather than a tourist visa was that it would provide a longer period of time for her to be away in the hope that matters might resolve with the neighbour. There is no evidence to suggest that a visa based upon the incident with the neighbour would have been available to her nor that she had any knowledge of the existence of such a visa (if one exists). The student visa took in excess of two months, to obtain. This means that it did not provide a quick escape from the situation she says that she was in. This sits uncomfortably her evidence that the husband said to her “you should try to leave Country E as soon as possible.”
The husband’s evidence was that there is no such person as Mr R, as identified by the wife. The person identified as living at the complex is a person called Mr S which the husband, and his father both said was not Mr R. They asserted that he was not known by such a name even as a nickname.
The husband denies that he was told of the allegations made by the wife, or at least not told until they formed a part of her application for a protection visa. He was initially supportive of the wife’s application for a visa based upon grounds including the allegation concerning the neighbour, although he says that he knew the basis to be untrue. His support of the application on these grounds is significantly inconsistent with his assertion that they are untrue.
There is significant uncertainty as to whether the incident with the neighbour occurred.
While often it will be the case that such a matter is then resolved by the failure of the party alleging the fact to establish the fact, the particular features of the jurisdiction of this Court to leave the matter in a state of uncertainty and to assign it significance as an uncertain fact. Such was recognised in the seminal High Court case of M v M (1988) 166 CLR 69. There the Court recognised that:
proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression… the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child…. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
It should not be thought that the above approach is restricted to any one particular class of allegation or assertion, such as those pertaining to sexual abuse. The conclusion arrived at by the High Court, in identifying the particular characteristics of the jurisdiction being exercised by this Court, is of more general application to the facts and considerations underlying a conclusion of what is in the best interests of a child.
As the evidence stands in these proceedings there is significant uncertainty about the claims concerning the neighbour. There is conflict in the accounts given by the wife, the choice to pursue a student visa with its attendant delays, the conflict in the husband’s behaviour in respect of the allegations, and the evidence from his father of there being no such resident of the apartments. The matter is left in a state of uncertainty, with it not being established that the incident occurred, but also not being established that it has not occurred.
There remains a risk of harm to the wife if she returns to Country E born of the uncertainty as to whether these events occurred.

The Country E police

The wife says that a further impediment to her return to Country E comes from interactions that she has had with the Country E police. While she said that when she initially came to Australia she was prepared to return to Country E if the problem with the neighbour was solved, she says that subsequent events now mean that the government will kill her if she returns.
The wife said that prior to her departure for Australia she had two interactions with the Country E police in respect of the incident with the neighbour.
The first, she says occurred more than two months prior to her departure for Australia. She says that while her husband told her that he would handle the issue with the neighbour, she insisted that the matter be reported to the police, and attended at the police station.
The investigation by the police apparently amounted to nothing. She says that one day before she left for Australia she had a verbal altercation with the Country E police in respect of the incident and said a number of things denigrating the Country E royalty.
The wife said that the husband told her that days after she had departed for Australia he received a visit from Country E intelligence in respect of the wife[5]. This account was placed under challenge, not least because the husband travelled to Australia with the wife, incorporating a stop-over in Country T and then remained approximately one month in Australia. On that account it was impossible for the Country E intelligence agency to visit the husband a matter of days after the wife had left for Australia. The wife sought to amend this account to say that what she had meant was that it has occurred a few days after the husband had returned from the trip to Australia. This presents as a potentially significant inconsistency, although some caution should be given on the basis that the account was provided in English through the assistance of a translator. The husband denied that he had any interaction with the Country E intelligence services about the mother.
[5] Tab 4, p10 joint tender bundle
The husband further asserted that no report of such a matter was made to the police, nor that he and the wife had ever spoken to the police or attended at a police station, and denied that he had given her any advice that she needed to leave the country.
However, it is noteworthy that the husband acted in a manner inconsistent with his current position, in initially supporting the wife in her application for a protection visa, including in providing financial assistance for that visa.
Added uncertainty is occasioned by the uncertainty that attaches to the incident that is said to underlie the approaches to the police, being the incident in respect of the neighbour.
The conflict between the evidence of the husband and the wife, the inconsistency in the husband’s approach to the allegations, the problem with the wife’s initial account of the security agencies contacting the husband (noting some caution attaches to this given the need for translation of documents for the wife), lead to uncertainty in relation to this matter. It is neither proven nor disproven.
As with the issue concerning the neighbour, there remains a risk to the wife as a product of the uncertainty of this matter.

Issue - Issues relating to whether they will live in Australia or Country E. These issues firstly related to the uncertainty with the mother’s proposal to remain in Australia and the question of the ability of the father to remain in Australia.

Given that a finding is not available that the wife will return to Country E other than by compulsion, this issue is necessarily limited, as far as the wife is concerned, to that compulsion. It is also necessary to deal with the prospects of the husband remaining in Australia.
The wife travelled to Australia with the two oldest children on a student visa. When D was born he acquired the same visa status as the mother.[6] Prior to the expiry of that visa the wife applied for a protection visa. She is currently on a bridging visa pending the resolution of her application.
[6] Q oral evidence
The husband says that the wife told him in September 2016 that she had met a person, “Mr U” who gave her advice regarding applying for a visa. He says that she told him that she would need to claim relationship problems as a part of this application. He said that the fee for Mr U’s services was to be $3,000. The husband also spoke to Mr U about the visa and transferred the money to the wife’s account.
The husband annexed messages between he and the wife during this period leading up to the lodging of the application. They are friendly, intimate and give the appearance of an ongoing dedicated relationship. The wife explains these messages saying that she communicated in this way with the husband to show that she was still following him, but that they were not genuine.
The wife made an application for a protection visa on 12 October 2016 (tender bundle items 2, 3 and 4). Item 4 is the statement in support. The reasons set out related to Country E being oppressive to women, the sexual assault by the neighbour, the confrontation with the Country E police and criticism by the wife of the Country E officials. The application was not then directed to behaviour by the husband.
Evidence was given by Mr Q, a migration consultant, regarding the wife’s visa application and prospects for that application. His evidence was that the initial claims made by the wife, if found to be credible, form a good basis for the grant of a protection visa.
He explained that there is scope for an application to be supplemented by additional grounds. Additional grounds based upon a history of abuse by the husband upon the wife provide an extra basis, if accepted, for the acceptance of the claim for a protection visa. The reason that this provides an additional ground is that the wife would be unlikely to receive the protection of the state in Country E.
In terms of assessment of the claim by the Department, he thought that the delay of the domestic violence claims may reduce their veracity. Ideally they would have been included in the initial statement, although their inclusion pre interview (the point at which the Department assesses the veracity of the claim) gives them better prospects than if they are included later in the process.
He said that the assessment of the wife’s credibility may be impacted by matters outside of her application. For example, if it were found that she provided false information in her documents (for example, to obtain support through Social Security) it would tend to undermine her credibility before the Department.
According to Mr Q, the Family Court’s findings (if made) about these issues, could be taken into account by the Department in assessing the veracity of the claims, but are unlikely to have a greater significance than that.
Refusal of the wife’s visa application gives rise to a right of appeal to the Administrative Appeals Tribunal, which takes approximately one year at present. The matter could then be taken for judicial review through the Federal Circuit Court and intervention by the Minister may be sought. The wife is not liable to removal until all the processes have been exhausted.
The father’s prospects to remain in Australia are impacted by the Protection Order proceedings taken against him. Although they were resolved by mutual undertakings without admissions, Mr Q’s experience with the Department is that these are taken to be an admission of guilt of engaging in family violence and will result in cancellation of the husband’s visa. The wife’s undertakings would be a minor issue in relation to her claim, on the basis that it does not relate to a major part of her claim for protection.
Mr Q was unable to otherwise assess the husband’s prospects for a visa, other than to note that an application for a parent visa or a contributing parent visa would take at least three years, cost approximately $50,000 and require sponsorship from a permanent resident of Australia or New Zealand. He would still also need to meet the character test.
The conclusions are that on the matters put forward by the wife, she has a valid case for obtaining a protection visa. In general terms, her case that is “quite good,” as described by Mr Q. He assesses that there are “many positive aspects” of the case. Her prospects however are dependent upon the Department’s assessment of her claim, that is, the credibility of the claim. The actual likelihood of the grant of a protection visa, as dependent upon a determination by the Department is unable to be assessed beyond the point that, if the claims are accepted they form a good basis for the grant of the visa.
Even if not granted the visa, the wife will be able to stay for a period necessary to exhaust a review process. The likelihood is that this is in excess of a year.
It is unclear what ramifications exist in relation to the risk posed to the wife on return to Country E. The risk to her from the neighbour or authorities was not supported by cogent evidence, as opposed to mere assertion as to the consequences of the risk.
For the husband, it appears unlikely that he will be permitted to remain in Australia, given the evidence as to the manner in which his undertakings without admissions are likely to be viewed by the Department.

Issue - what support is available for the parties?

In Country E both parents have access to extended family. The husband’s family, in particular, appear to have played a significant role in the husband and wife’s lives and, it may be inferred, in the oldest children’s lives. The husband would live in close proximity with his family in the same villa. He is prepared to take six months away from work to settle the children back into Country E.
It is unknown what, in the context of no longer being in a relationship with the husband, the wife would have available to her in Country E. The husband offers the apartment he lives in within the family villa for the wife and children to live in. He says that he will provide financial assistance to the wife and the children. He was not challenged as to these assertions, although the practicality of these arrangements and the extent of the financial support is unclear.
The husband also says that he has not told the Country E Embassy about the subject matter of these proceedings insofar as they relate to the wife and her protection visa application. Evidence was taken from his solicitor, who was not required the cross-examination, confirming that the Country E Embassy had not been provided with the Court documents for this matter.
It is unclear what support is available to the husband in Australia. The wife has availed herself of various support services, including assistance from and the allocation of a support worker from a refuge, from the Domestic Violence Crisis Service, from a psychologist for C and social security.

Issue - what is the effect of potential separation between the children and a parent?

This will be dealt with in the context of the Family Consultant’s evidence.

Issue - the expense and practical difficulties, and the extent to which the parents will be compliant with orders in the event that the father returned to Country E without the children, if the mother remained in Australia without the children, or if the parties were either both in Australia or both in Country E.

If the parents are in separate countries there are significant practical impediments to maintaining relationships with the children, flowing from distance and expense alone.
Country E is either seven or eight hours behind Australia, depending on the time of year. Travel takes 13 hours or 15 hours plus a 24 hour stopover. Return tickets cost between $1,500 and $2,400 AUD. The husband has limited means to fund such travel. If the children were to remain in Australia, potential visa issues for the husband are likely to stop him being able to travel to Australia.
Country E is not a member of the relevant Hague Convention. If the wife was to send the children to Country E to visit the husband, or if the husband was to have the children living with him in Country E, there is no legal guarantee of their return to Australia in compliance with orders made by this Court. The husband’s position is that, if the wife does not return to Country E, the children should live with him there. Against this is the husband’s seemingly unchallenged position that he is supportive of the children’s relationship with the mother. On balance, while it appears likely that the husband is supportive of the relationship with the wife, there is still significant uncertainty as to the return of the children to Australia in the event that they are sent to visit the husband in Country E.
If both parties were to remain in Australia, the degree of practical impediments in the children having relationships with each of the parties appears to primarily flow from the difficulties in their relationships with each other. These are matters that could be accommodated by means of appropriately structured orders.
If both parties were to be in Country E there is limited information as to what the wife’s circumstances would be. No particular matter is raised as a practical impediment, although the difficulties in the parent’s relationship would likely cause difficulties.
The husband alleges that, despite orders providing for daily telephone contact with B made by the Federal Circuit Court on 20 February 2017, between 21 February and 1 March 2017 he was not permitted by the wife to do so. She subsequently advised him, through her lawyers, that all contact with the children was suspended. The husband agreed not to contact the children until they had the opportunity to speak with the Independent Children’s Lawyer. On 12 May 2017 the Federal Circuit Court made orders for face to face time, including overnight time each week with B and C. The husband complains that the wife was repeatedly late in attending for changeovers and changed the handover point.

On 19 May 2017 the wife’s solicitors wrote to the father’s solicitors seeking a reduction in the time between the husband and the children. The wife said that she did not know the reason for this request. On 23 June 2017 the wife’s solicitors wrote to the husband’s solicitors suspending time with the children from that date. The wife said she could not remember, the reasons for doing so were too many and she could not recall which reasons led to the suspension. In a matter of such short duration it is difficult to understand how the wife could not be conscious of the reasons why she would have sought to reduce, or reduced the limited time the children were spending with their father when she also says that the children have a good relationship with their father and she was happy to have orders that provided for them to have time with the husband.
It may be accepted that the wife has not been wholly compliant with the orders. In the context of her expressed hatred for the husband the Court cannot be confident of her compliance with orders supporting the relationship between the husband and the children.

Issue - In the event that both parents live in the same country, the parties further identified an issue as to the allocation of parental responsibility and as to how time ought be divided.

This matter will be dealt with in the discussion.

Issue - credibility issues arising from either the wife’s fabrication of violence by the husband, or the husband’s false denial of violence.

This issue is subsumed into the assessment of the evidence relating to whether the husband has committed family violence upon the wife. Neither party, but particularly the wife, proved reliable in relation to their accounts in relation to family violence.

The relationships with the children

The husband explained that during their time in Country E they shared the care of the children. They each engaged in activities for the care of the children which he said was rare in his country but was something that he enjoyed. Despite the fact that he asserted that they shared the care of the children such as to deny that the mother was the primary care of the children, he accepted that he would work eight hours per day, four days per week.
The husband asserts that the wife would frequently yell at him during their relationship. He says that he did not yell back unless they were involved in a big argument, in which case the yelling would occur other than in the presence of the children. In the Family Report it was recorded by C that he had some fear of the mother because of yelling. None of the children indicated a similar fear in relation to the husband because of his yelling.
The husband told the Family Reporter that B had become disrespectful of him. He was concerned that the cause of this was that the mother had got into her head. He asserted in his oral evidence that this situation has improved. He now, somewhat conflictingly, asserted that B is always happy when she is with him and smiles all the time. This is not the case, at least insofar as the observations of the Family Reporter went.
The husband in his oral evidence asserted that his relationship with C is very strong and it has not changed since they were in Country E. He asserts that he and C used to do many things together while he was in Country E.
In relation to his relationship with D, D having been born in Australia while the husband was living in Country E (although the husband visited for D’s birth), he asserted that D was equally attached to he and the wife, but had closer attachment to B. As to the time that he has spent with D, he asserted that he has had overnight time each night between 7 and 19 February 2017. He has not had D overnight since that time. This is an unrealistic understanding of the nature of the relationships of each parent with D.
The wife accepted in her oral evidence that the children’s relationship with their father is good. She said that she was happy that the Family Court made orders for face to face time between the father and the children.
She was unable to recall whether in February 2017 when she gave the husband the keys to her home, she had concerns regarding the husband, unable to recall whether the children missed the father, and accepted that , although she did not recall, it was possibly the case that the children were desperate to spend time with the father and that she did not want to take him away from them.
The wife told the Domestic Violence Crisis Service that the husband was kindly to the children, although it was the wife who did everything and the husband was useless.
The wife has had the primary care of the children all their lives. In the period in Australia until the husband arrived in February 2017, she has had sole care of the children.

Involvement of the children in the proceedings

At exhibit C2 tab 15 page 11 Ms V, Principal of W School, where C attends, records things said in February 2017 by C. C told Ms V that his father had told him that
[C] would need to choose which parent he would live with and that [C] should choose his father as his mother loves [C] so much that if [C] chooses his father, it will force his mother to come home with him to [Country E].
Initially under cross-examination the father denied saying this to C. The Family Reporter at [73] records him agreeing that he had said such a thing to C. He subsequently accepted that he had told C on one occasion to tell the mother to reconcile with him. He denied that the children knew about the Court proceedings nor they knew about his intention to have them return to Country E. He asserted that he would no longer say such things to the children as he understood that it would cause them stress.
B told the Family Report writer that her father had referred to the mother as “sick” or “crazy”. She said that her father also told her he wanted to marry her mother again. The husband denied that he had said such things to B and suggested that someone had coached her to lie about these matters. B further told the Family Report writer that the father keeps talking about the mother. The father initially said this was a lie and then indicated that it was an exaggeration on B’s part.
The wife complains that the husband has questioned the children on a number of occasions about where she and they are living while he has been speaking to them on the telephone. The husband denies that this is so and says that he merely asked C if there were shops near where he was living to which C volunteered that there were shops at Suburb X, thus revealing the suburb of which the wife and the children were living. The husband said that he had no interest in knowing where they lived.
The husband at [128] says that shortly after the interim proceedings in the Federal Circuit Court B spoke to him about the husband showing naked pictures of the wife to the Court. B explained that she overheard her mother talking to a support worker about it.
While spending a week of holidays with B and C in July 2017, the husband says that C told him that the Court was allowing one last week before the husband was to be kicked out of Australia.
The father reports B saying to him on 20 June 2017 that her mother had said that if the father left Australia their life would be better, with a lot of money, a better home and a better life.
It appears that each parent has involved the children in their dispute. The wife has involved B and potentially C, the husband both B and C.

Evidence of the Family Report writer

The report was limited by issues with access to interpreting services.
On the particular characteristics of the children, the report writer noted that D was only 12 months old and so could not be interviewed as to his views or feelings. However, it was notable that he has always lived in Australia. This is the only place that he has known.
She noted that C was excited at the prospect of seeing his father when assessed, indicated that he misses his father, and that he rated both of his parents as 10 out of 10. One way he differentiated between his parents was that his father would buy him things as soon as he is asked, whereas his mother will buy them if he is good. C expressed that he was sometimes scared of his mother as his mother shouted, which was not a fear that he expressed in relation to the father.
B expressed a clear view that she wishes to live in Australia with her mother. A caution was raised for the Family Report writer in that B had no positive matters to say about her father. There were various explanations available for this. One is that she has been exposed to the proceedings, by either the mother or the father. She reported the father involving her, for example by telling her that her mother was “crazy”. The Family Reporter thought that such a reaction could also come from previous experiences with the father, or from the fact that she is a teenager experiencing a difficult time in her life and facing a cultural clash in relation to expectations as to how she might behave as a child. The father had reported to the Family Report writer that B has become insolent to him although he asserts that she has subsequently improved.
Despite the lack of positive matters identified by B in relation to her father, B gave no impression of fear in relation to him. The manner of questioning, and the fact that she was portraying him in a negative light to the Family Report writer, meant that she had the opportunity to raise issues of the father causing her fear. She did not. Her general reasoning for preference was thought by the Family Report writer to be superficial and shallow. One way that B differentiated between her parents was on the basis that her mother buys B “stuff” whereas she has to ask her father “millions of times”. However, she also said that her mother sits and talks to her. The Family Reporter found it hard to know the significance of the difference between the views expressed to her, as opposed to those put by B when she initially commenced staying with the father shortly after his arrival, to the school psychologist which appeared to preference the husband. The Family Report writer accepted that B’s views could have been affected by the mother saying things such as they did not need the father. She observed B to be strained at interview. B was observed to be rejecting attempts during the assessment by her father to engage with her. The writer, however, due to their use of Arabic, was unable to understand their interaction. Their interaction improved as time went on.
The Family Report writer identified that there are benefits for the children in having contact with their extended family in Country E. This was said to offer for them a sense of belonging, of their culture and a positive sense of identity. Similarly, in relation to spending time with their father, he could provide a sense of belonging and a family. He also provided culture (although the mother is from the same cultural background) and presented a father figure which would be a benefit to the children.
The Report Writer thought that if the parties were able to live in the same geographical region, it would be in the children’s best interests. The report writer thought that geographical proximity would be in their best interests because that would enable the children to have meaningful relationships with both of their parents. She further noted the father’s position was that he was willing for the children to live with the mother if they were in the same geographical area, provided it was safe for the children and the children wanted it.
At the same time, the report writer described herself as “unconvinced that a return to Country E is in the children’s best interests”, given they had been in Australia at that stage nearly two years, B expressed clear views to remain in Australia and D has never lived there.
In the event that the mother can remain in Australia while the father cannot, she recommended that the children remain and have yearly periods of time with the father along with regular electronic communication. Given the ages of the children she thought that D, as a toddler, would benefit from short but regular periods of time with his father in order to secure a meaningful relationship. Those short periods need not be restricted to the two hour periods suggested by the wife as the husband demonstrated the practical capacity to care for him for longer periods. For B and C, who are older, there should be longer periods of time at a lower frequency, although her recommended times did not provide for this different frequency.
The children have different developmental needs, given their different ages. This led to different recommendations for the children, in the event that the parents are in the same place, whether that be Country E or Australia. Her recommendation is for mid-week time for each of them, along with some weekend time each weekend. D should have the same mid-week time and a period during a day each weekend. The report writer thought that this should be the same in either Australia or Country E.
In the event that the children lived with the wife in Australia, with the husband in Country E, she recommended 3 periods of electronic communication each week along with one period of face to face time each year.
The Report Writer was questioned as to the significance of a finding being made that the assertions made by the mother, both against her neighbour and the Country E police and against the father, are fabrications. Initially her view was that if this was the case it was a major concern as to the mother’s character rather than as to her parenting capacity. However, the Report Writer accepted that it impacted significantly on their capacity to co-parent (although I interpolate that if the allegations are not fabricated it also calls into question the capacity for co-parenting), or could potentially raise mental health issues if it meant that the mother was not in touch with reality (although the Family Report writer indicated that she did not hold the expertise to make any such assessment but that further expert evidence may be required to deal with that issue). No evidence was led to establish a mental health issue.
The Report Writer accepted that such a fabrication may indicate the mother placing her needs ahead of those of the children which may mean that she does not prioritise the children in other areas. She also thought that involving the children in such a fabrication may damage their relationship with their father. By the close of her evidence the Report Writer thought that the issue of fabrication was pivotal as to the determination of the case. This appeared to be because if the allegations were fabricated, then the mother does not face issues of safety in returning to Country E. It is those issues of a risk to her of return that, in the Family Report writer’s mind, meant that the risk to the relationship between the children and the father was outweighed in determining what arrangements should be made. Presumably this meant that fabrication meant that the wife would be safe to return to Country E such that there could be time spent by the children with both parents.
The report writer was also questioned as to the significance of the allegations that the mother leaves the children unsupervised at night, leaving B in charge. The report writer accepted that this would raise concerns about the mother’s parenting and about the safety of the children. It would give greater need for the father to live nearby. On its own it was not sufficient to mean that the children should return to Country E. That is, against the safety issues faced by the mother the risk of return outweighed the risk of separation from the father. As to the impact that leaving B in charge might have upon B, the question of whether or not this was damaging, she thought, depended on B’s maturity, the duration of periods that she was supervising and its frequency. She was unable to resolve whether or not such an arrangement was damaging to B.

Discussion

The paramount consideration is the best interests of each of the children. While the Court, in determining best interests is not bound by the proposals of the parties (as they may not necessarily reflect a result in the best interests of the children), the Court is required to give a proper consideration of those proposals and to accord the parties procedural fairness in relation to the outcome. This requires a consideration of best interests as the paramount but not the sole consideration in the light of, but not limited to, the manner in which the parties conducted the litigation[7].
[7] Gummow and Callinan JJ, and separately Hayne J in U & U (2002) 211 CLR 238
The effect of those positions, and the evidence in respect of the ability of the parties to remain in Australia, means that the practical boundaries of any scheme of orders must recognise that the wife will remain in Australia unless forced to leave by the migration authorities, the prospects of which are unknown. While uncertainty and risk have been identified regarding the neighbour and Country E authorities, the case does not turn on this point. Such risk may impact on the question of whether the wife could return, but it is peripheral to the circumstance that the wife has no intention of returning. While the husband at present remains in Australia, it is highly unlikely that he will be able to continue to do so. The scheme of orders will need to encompass, therefore, the circumstances that the parents will be geographically separated unless the wife is returned to Country E. That forcible return, if it is to occur, is unlikely to occur within twelve months.
The determination of best interests requires the consideration of the matters set out at s 60CC of the Act, in the context of the objects and principles contained at s 60B of the Act. As is often the case, here the considerations set out at s 60CC are interconnected with and overlap each other. They are not amenable to consideration in isolation from each other.
The benefits of meaningful relationship (s 60CC(2)(a)) are here connected particularly to the views of the children (s 60CC(3)(a)), the nature of the relationships between the children and each of the parents (s 60CC(3)(b)), the capacity of the parents to provide for the children’s needs (s 60CC(3)(f)) and the characteristics of the children and the parents (s 60CC(3)(g)). There is also a connection with s 60CC(2)(b), protection from the harm of abuse, neglect or family violence, as any of these factors also impact upon the benefit of meaningful relationship.
In applying these considerations it is useful to consider the progression of the parenting arrangements. Prior to the move to Australia, the wife had exercised the bulk of the care of the children. Although the husband appears to have had strong involvement with the children, for significant periods at least, he has been in full time employment. Whatever the detail of the arrangements in Country E, they were sufficient to ground the parties’ joint decision that the wife would have the sole care of the children in Australia for an extended period. This necessarily meant that the parties both understood her capacity to do so and the appropriateness of her doing so. It may be inferred that the parties regarded it as in the children’s interests for them to be cared for under these circumstances, rather than together as a joint family unit.
Since that move it is the wife who has exercised the bulk of the parenting of the children. While, until approximately January 2017 the husband had frequent electronic contact with the children, save for a visit at the time of arrival in Australia and for a visit for D’s birth, that is the extent of his involvement until February 2017. On arrival in Australia he initially had significant time with the children, although this was, after approximately one week, scaled back. It is currently one afternoon and one overnight per week with B and C, and one afternoon and one day per week with D. The wife has remained the primary carer. During the period before the husband arrived in Australia in February 2017 she was effectively the sole carer for the three children.

In considering the commitment of the husband to the children, his efforts in travelling to and in remaining in Australia speak to his commitment to the relationship that he has with the children.
This history of the care of the children shows that the parties are in very different positions in relation to the children. By virtue of these arrangements their relationships with their children differ.
B, on the husband’s arrival in Australia said to the school psychologist (Tender bundle Tab 20) that she felt like going home to Country E, to be looked after by her father, grandmother and cousins. She said that she did not feel that she belonged at school due to the differences in culture, lifestyle and expectations. That apparent security of relationship is not what was later expressed to the family report writer after B had spent more time with the husband. As observed by the family reporter, she is resistant to him, and on his account, “more bold” and “insolent.” She expressed nothing positive about him to the family reporter.
Rather, she expressed connection with her mother. Although her reasons were in some respects superficial, she also described a connection with her mother that meant that they talked.
B is resistant to moving back to Country E.
She has been involved in the conflict by both parents. This cannot have assisted her in her relationship with her father. That relationship may well have been undermined both by the wife’s comments to her regarding the husband, but also by the things that the husband has said to her about the mother.
C expressed enthusiasm for each of his parents. Some of the endorsement of his father was immature, but he was observed to get along easily and well with his father. His characteristics and the nature of his relationship with, and views about the father, do not provide the same impediments as for B. He has not recently experienced, but for short periods, what it is to live with his father. He has been living with his mother and endorses her in the same manner as the father, that is, as 10/10, although he expressed some concern about the mother shouting at him.
D has, for his whole life, been dependent upon the wife and his siblings. He has had quite limited involvement with the husband.
The level of involvement of the husband with the children calls into question his capacity to emotionally and otherwise care for the children. The husband’s limited involvement with the children means both a limited basis to assess his capacity, but also, in circumstances where he was content for the mother to care for the children on her own in Australia, an underlying confidence on his part of her capacity to care for the children without direct assistance and remote from family in Country E.
That capacity was called into question by the wife’s leaving B overnight to care for the younger two children. It may be seen from this that the mother does not always exercise the capacity that the parties jointly relied on her as having. However, that deficit has not been shown to have sounded in harm to B. That is, if such action on the part of the wife could be described as neglect, it has not been shown to have resulted in harm to B or the other children.
The wife has otherwise demonstrated capacity to cater for the particular needs of the children, for example by engaging a psychologist to provide counselling for C, and by taking steps with the school to deal with difficulties C was encountering at school.
It is true that relationship with the husband should bring to the children the benefits of a connection to their cultural background. The wife is also of the same cultural background, although she described limited involvement with the mosque while in Australia. It is also true that with the husband comes relationship with the paternal family. It is not as clear the degree of connection to the maternal family through the wife, although some connection is available. Whatever connection there might be with either extended family, it will be severely limited while the children are in Australia.
Issues of family violence loomed large in this trial. As outlined above, I do not accept that the husband has been physically violent to the wife. I do however accept that he has engaged in coercive and controlling conduct of the wife, specifically with regard to their sexual relations. Coercion and control, by threats and consequences to her freedom, to cause the wife to ensure that the husband is sexually happy is a serious matter.
The evidence set out no specific impact upon the children. Nor did it show that the children were directly exposed to the conduct. However, such conduct has the potential to be deeply corrosive within a family, the wife being subjected to control by means of fear. In such circumstances, where the wife has had such a primary role in the care of the children, even where a specific, direct impact cannot be identified, it cannot be assumed that there is no indirect impact. However, in the absence of evidence on that point, the impact is both unable to be quantified or assessed as to its degree of significance.
Against this, the argument was put that the mother’s pursuit of allegations to the migration authorities of violence on the part of the husband, where unfounded, is harmful to the children. The evidence did not establish that such allegations have impacted upon the children save potentially for their migration status and potential separation from the husband, particularly in the absence of any fear being displayed by the children toward their father. To the extent that B’s attitude to the husband has been influenced by the wife, it is not clear that the wife’s allegations of violence have also impacted on this beyond her general hostility to the husband. It cannot however be thought that the wife will be a willing supporter of the relationship with the husband.
Given the uncertainty that surrounds the allegations made by the wife concerning the neighbour and the Country E authorities, a finding of fabrication has not been made in respect of these matters. There remains the possibility, as identified by the family report writer that the wife has prioritised her position over the needs of the children in respect of their relationship with the husband.
The balance of the s 60CC considerations do not contribute significantly to the determination of what is in the best interests of these children.
On the issue of family violence orders, there are mutual undertakings that each party has given without admissions.
The husband has given significant financial support, which ceased from early this year. However, under circumstances where he has remained in Australia away from his employment it is also not clear what capacity over and above his support of himself was available. In the particular and extraordinary circumstances of this case the failure to continue to support is not a matter to be accorded weight.
No particular outcome is associated with further litigation, other than the summary return orders, which were refused, that would have, potentially, resulted in litigation afresh in Country E. It must however be acknowledged that the potential for litigation in Country E still arises in the event that the parties end up both in Country E.

Parental responsibility

Given the findings that the husband engaged in family violence by acting in a coercive and controlling manner toward the wife, s 61DA(2) provides that the presumption that it is in the best interests of a child to make an order for equal shared parental responsibility does not apply. The allocation of parental responsibility falls to be determined on an assessment of what is in the best interests of these children without a presumptive starting point.
The particular considerations that are dominant in determining this aspect are the nature of the relationship between the parents and the likelihood that, in the medium term future, and perhaps in the long term future, the children will live with a parent in one country, with the other parent in another country.
The relationship between the husband and wife is exemplified by the allegations made in this case concerning family violence. They are a collection of proven family violence against the husband, accompanied by allegations by the wife that are without merit. These circumstances are not conducive to the parties being able to comply with the obligations in relation to consultation and joint decision making imposed by s 65DAC in the event of an order for equal shared parental responsibility.
Secondly, the parent with whom the children live will have almost the sole care of the children, given the geographical circumstances of the parties. Decisions, including long term decisions, will need to be made in the context of the particular circumstances of where that party and the children live.
Those two matters, particularly when seen cumulatively, mean that an order for equal shared parental responsibility is not in the interests of the children.

Primary carer

The care arrangements for the children fall to be determined without the requirement to follow a particular pathway of reasoning.
The geographical circumstances of the parties mean that one party will have the primary care of the children. Even absent this consideration, such a result is necessary given the nature of the relationship between the parties, which in this case would rule out a regime for equal time, or something approaching equal time, as being unworkable.
The matters set out above in relation to the s 60CC factors point largely to the wife as being the person who it is in the best interests of the children to live with. For example, the nature of the relationship between B and the mother, as opposed to the father, and B’s views, (despite a level of immaturity on B’s part as to the reason for those views) strongly points toward B remaining with the wife. B has also played a significant role in the care of her siblings, which points strongly to the need to keep the three together. No party suggested that there should be a separation of the children.
Most importantly, despite matters that call into question her capacity the long standing role of the wife in caring for the children, in the absence of the husband, is a strong indicator of her capacity and of the parties’ understanding of the relative relationships with the children.
There can be little confidence of the wife’s compliance with obligations to foster the relationship with the husband. This is a serious matter as it raises questions as to the extent to which the children might have meaningful relationships with both parents if they are in the wife’s care. However, there are strong mechanisms for the enforcement of such obligations through this Court. There is a risk that they will not be able to see their father face to face again if his entry into Australia is refused.
Questions are also raised in relation to the maintenance of the wife’s relationships with the children if they are in their father’s primary care. While he appears to be supportive of the relationships, should there be a failure to comply with obligations there is no clear mechanism as to the enforcement of those obligations should he be in Country E.
However, the long standing role of the wife in this matter outweighs the other deficits pointed to in respect of the wife, and forms the dominant matter amongst the considerations.
It is in the children’s best interests that they live with the wife.

Time with the husband

It is necessary to fashion orders that will deal with the children living with the wife while she remains in Australia while the husband remains in Australia, and in the event that either cannot remain and returns to Country E. The family reporter set out a general regime for orders appropriate to the developmental requirements of each of the children, setting out a slightly different regime for the older two than for D.
Given the issues that arise from Country E being a non-Hague Convention country, no provision will be made for time to occur there with the husband. To the extent that he has the capacity to travel to or remain in Australia (noting that there are strong doubts as to whether there is any ability to do so) that capacity should be used to the maximum extent.
One difficulty arises from D’s young age and limited time with his father. The difficulties with distance mean that orders will need to be made for block time with D should the husband visit. Although at present it is recommended that the visits be day time only, this is not a case where an ideal arrangement can be put into place. To the extent that block time may result in D being with his father for longer periods than recommended, the difficulties may be expected to be ameliorated by the presence of his brother and sister, noting the significant role his sister has played in his care to date.
Given the significant unlikelihood of the husband being able to stay, the frequency of time while they still live in the same country should be high to give the best benefit from relationship with the husband.
Maintaining the relationship with the husband will require electronic communication with the children so that they may have the best benefit of their father despite the distance. This may commence prior to the husband leaving the jurisdiction (if that is what happens) so that they might become familiar with this method of communication for the period that they are still also seeing him face to face. In order to facilitate the relationships it should be at a high frequency.
Orders will be made for the discharge of the Independent Children’s Lawyer, but not for a period of twelve months after the making if these orders. Given the concerns regarding the wife’s future compliance with orders, and given that the husband is likely to be out of the jurisdiction, it will be of assistance to the children in maintaining a relationship with their father for the Independent Children’s Lawyer to be available in the event of there being the necessity for enforcement proceedings, including enforcement proceedings regarding electronic communication.

I certify that the preceding two hundred and twenty-seven (227) are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 January 2018.

Associate:

Date: 17 January 2018

[2018] FamCA 10

17 January 2018

Key Legal Topics

Areas of Law

Family Law