HANAS & JOLAHA
[2019] FamCA 319
•28 February 2019
FAMILY COURT OF AUSTRALIA
| HANAS & JOLAHA | [2019] FamCA 319 |
| FAMILY LAW – CHILDREN – Application to restrain a party from registering orders made by a USA Court in the Family Court of Australia or any other Court with jurisdiction under the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) |
| Karim & Khalid [2007] FamCA 1287 Pascarl & Oxley [2013] FamCAFC 47 |
| APPLICANT: | Ms Hanas |
| RESPONDENT: | Mr Jolaha |
| FILE NUMBER: | SYC | 113 | of | 2019 |
| DATE DELIVERED: | 28 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 27 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Quinn |
| SOLICITOR FOR THE APPLICANT: | John R Quinn & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Wahhab |
| SOLICITOR FOR THE RESPONDENT: | York Law Family Law Specialists |
Orders
The father be injuncted and restrained from doing any act or thing to obtain a Certificate of Enforceability of Orders of the F County court of State E made on 11 January 2019, or doing any act or thing to cause those Orders to be registered in the Family Court of Australia or any other Court with jurisdiction under the Family Law Act 1975.
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 Hanas & Jolaha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC113/2019
| Ms Hanas |
Applicant
And
| Mr Jolaha |
Respondent
REASONS FOR JUDGMENT
This is an application by a mother seeking I restrain a father, her husband, from doing any further act to cause registration of an Order of the County Court of State E in America made on 11 January 2019 to be registered in Australia. That application was filed by way of an Application in a Case on 22 February 2019, together with an Affidavit in support. The Application in a Case sought additional orders to this which is being dealt with today. The order that I’m dealing with today is order 5.
Mr Quinn acted for the mother and Mr Wahhab for the father. The father was not present, nor had he filed material. There is no criticism of that. This matter came on extremely quickly and I will deal with other issues later. Both the mother and father and child X, who is the subject of this litigation who was born in 2017 is a mere 19 months of age, are citizens of Australia and the child is also a citizen of the United States of America, as she was born in that country. Neither her parents have on the evidence I have read have any capacity to, at this stage, live in or reside in America.
The mother, father and child live in Australia and they have done so, for the mother and the child since about 20 December 2018 and for the father from about 24 December 2018. That was a consensual and by agreement arrangement between the parents. The father indeed, paid for the mother and child’s air flight tickets to Australia.
The evidence I read for the mother was:
a)Application, and Affidavit filed 10 January 2019 and the annexures to that Affidavit;
b)Application in a Case, an Affidavit in support filed 22 February 2019 and the annexures to that Affidavit;
c)A handwritten order of the F County Circuit Court dated 22 February 2019; and
d)A case outline prepared by Mr Quinn.
The father had no time to file his response and I only heard submissions from Mr Wahhab and there is no criticism of the father. I have listed the matter for a short interim hearing on 11 April 2019 in relation to X’s time with her father, which is a very important issue, and I have ordered child-inclusive conference, which will be held on 9 May 2019. If the parties are unable to resolve the longer term interim issues after the child-inclusive mediation I would list the matter for a further and a more appropriate interim hearing.
The chronology and facts of the matter are important, as is the history.
As I said, this matter deals with the child, X, who was born in 2017. She is presently 19 months of age, lives with her mother in Sydney and is currently spending time with her dad each alternate Saturday from 9 until 6 and each alternate Sunday from 9 until 6. There was a proposal for additional time during the week on a Wednesday. The father works full-time. He has always worked full-time and he is clearly a competent and skilled executive in his area of work.
The father was born in Country C in 1975. He is 43.
The mother was born in Country B in 1988. She is 30.
The father emigrated to Australia in 1986 and became an Australian citizen at some point. The mother emigrated in 2001 to Australia and became a citizen at some point.
The parties commenced living together at marriage in 2010.
The father obtained a position in City D, State E in March/April 2017 and the parties by agreement moved to America.
He was granted – the father – a temporary work visa expiring in February 2019 and the mother ceased her employment at the time and was not able to work in the USA.
X was born in 2017 and has dual citizenship.
The parties separated in 2018 in America after an argument whilst they were on holiday in City G.
The mother purchased a ticket for herself and her daughter to return to Australia where the mother’s family lives. The mother did, ultimately, return from City G to City D and returned to the former matrimonial home in 2018.
The mother then filed an application for dissolution of the marriage in the F County court in 2018.
The father vacated the former matrimonial home in 10 September 2018 and the father sent the mother a text message on 11 September 2018 asking the mother to withdraw the proceedings in the F County court and indicating he would agree for the mother and child to return to Australia.
There is a contest about whether that was, in fact, correct: whether the consent was withdrawn and that is a matter for a final hearing.
The father filed a response to the mother’s petition for dissolution of marriage on 4 October 2018 and he sought in addition some relief in relation to his daughter. That is, she spend two nights a week with her father. This is at a time when the child is barely 12 months of age.
Some interim orders were made by a Judge of the F County court on 17 October 2018 for X to spend day time with her dad from 3 to 7 on a Wednesday and 9 to 3 pm on one day of the weekend. That makes sense. Her father was still working in a high powered position and this time fitted in with his work commitments.
There was also what they call in America a guardian ad litem, a GAL, similar, perhaps, to an Independent Children’s Lawyer in Australia appointed.
On 23 October 2018 the father received an offer of employment from H Proprietary Limited to work in Australia commencing January 2019, which was most propitious given his work in America was ceasing, at least, by February of 2019, when his visa would expire.
The father in October 2018 filed a further counter petition for dissolution of marriage and an expedited hearing permitting his daughter to return to Australia with him to reside permanently. There was some issue about the mother remaining in the States. It is clear that the father had a job here and wanted his daughter to return to Australia with him.
Reading from that affidavit, which has been attached as part of the annexures to the mother’s affidavit, he sets out the clear reasons why at that time in October 2018 it was proper that his daughter reside in Australia. They begin at paragraph 4. He says:
It’s in my daughter’s best interests for the court to permit me to return to Australia with her pending the case. The reasons are as follows. We are all, my wife included, citizens of Australia. My work visa expires in February 2019.
The mother’s residence in America depends on the father’s visa. The mother has a degree in accounting and a law degree and cannot work in America and she is not licensed to practise law. She was earning some $75,000 per annum in Australia before they left for America.
My wife and I intended to return to Australia in early 2019. We came to the United States in 2017 so I could temporarily work in [City D] and we had a specific agreement and understanding that our stay in America was temporary and would end in February 2019 when my E3 visa expired and we planned to return home. The filing of the divorce did not change my plan to return to Australia.
The father asserts the mother was attempting to derail his attempt to return to Australia. That is a matter for a final hearing.
I received my written offer of employment on October 23, 2018 and my position begins in January and I intend accepting it. We both have substantial professional, financial, emotional and familial ties to the Commonwealth of Australia. Our family and friends are in Australia. And I believed that my wife also wanted to return because in August she bought a ticket for herself and our daughter to travel and when this was discovered she panicked. I was surprised and then she filed the petition for dissolution of marriage. My wife believes she was in the wrong and that filing an application for dissolution would negate her attempt to leave the United States with the child.
The father asserts he can care for his daughter. That he plays a central role in her care around his work commitments. Of course, he would have. There is no issue. His care of the child was rising at 6 am and caring for her until 8 am when he would go to work.
Occasionally, I would come home from work to feed and see my daughter. I would come around a quarter to six, spend time playing with her.
Clearly, on his own evidence the mother was the primary carer for the child, because he was working at his high-powered well-paid position. He is clearly a valuable employee. From reading the father’s own affidavit filed in the F County court on 30 October 2018 which fortunately the mother has attached to her material, it being the only evidence I have from the father together with letters the mother has also attached to her affidavit, sent by his lawyers to her in January 2019, it is clear the father’s intention is to reside in Australia when his work in America cased and this was always temporary.
The father clearly set out at paragraphs (a) to (h) of his 30 October 2018 affidavit, why he wanted his child to live in Australia with him. True to the father’s affidavit this is what has happened. Namely, he, his daughter and her mother all live in Australia. One might, therefore, wonder why the father has enlivened litigation in the American courts post his permanent relocation to Australia on 24 December 2018, for that is clearly what he has done. He pursued litigation in America by re-enlivening the application. I use that word precisely. He pursued the litigation on 27 December 2018, on 11 January 2019, on 19 February 2019 and on 22 February 2019. By letter from his Sydney lawyers dated 14 January 2019 he sought to enforce contempt orders made by a Judge on 11 January 2019 in the absence of the mother, although she had a legal representative present which I will later read out.
I will continue with the chronology.
After the father received his offer of employment from H Proprietary Limited and had filed the petition for the expedited hearing to permit he and X to return to Australia, the Judge made orders that X not only spend day time with her father, but the overnight on Wednesday. That occurred on 31 October 2018.
The mother then filed an application on 16 November 2018 permitting her to remove herself and her child to Australia permanently.
One would have thought that the USA proceedings were, therefore, over. Both parents had filed applications seeking to have their daughter live in Australia permanently and for each of them to live in Australia permanently.
However, this is not what has occurred. The Judge made orders adjourning the matter to 13 December 2018. The parties then attended a mediation with X’s lawyer and they reached, I’m told, an informal agreement for each of them to return to Australia, dismiss the US proceedings, bring proceedings in an appropriate court in Australia, which is this court, the Family Court of Australia, and the words are used “strike the hearing date of 13 December before [the Judge]”.
An MOU was drafted but no orders were actually filed and no steps were taken in the court. Neither party attended the adjourned hearing before the Judge on 13 December 2018 as far as I can read the evidence.
The mother purchases tickets to returns to Australia on 28 November 2018 and arrives in Australia on 20 December. The father arrives in Australia on 24 December. There is an issue with the mother not wanting the father to spend time with the child and take her away from his home once they all arrive in Australia. She offers him time at the home of her parents.
When this occurs the father’s action on 27 December 2018 is to re-enliven the proceedings in America, which on any reading of the facts one might have thought had run their course. The father enlivened the matter by filing an emergency petition for indirect civil contempt of court in the F County court and that the mother be found guilty for contempt because she had not complied with the orders made in America for the father to spend time with the child in America. At this time everyone was living in Australia.
The Judge adjourns the contempt application to 11 January 2019 and ordered both parties to attend court in person despite the fact everyone was living in Australia and the father was due to commence work in Australia.
The mother on 10 January 2019 filed an initiating application in the Family Court seeking X live with her, spend one day a week with her dad, she be put on the airport watch list and seeking to injunct the father from continuing the proceedings in the F County court.
The matter was given a return date of 11 February. X is on the airport watch list.
The Judge hears the contempt application on 11 January 2019. The father attends court in person. The mother cannot attend she has no funds. The Judge makes the following orders in the absence of the mother when proceedings have been filed in the Australian court and the father is aware of this.
That the mother is guilty of the contempt, is to be sentenced to a term of incarceration in the F County jail, remain in custody until she purges her contempt by posting a $10,000 bond in cash.
This is a mother who has no job and no financial resources and lives in Australia with an 18 month old baby.
The Judge stayed the incarceration for a period of 53 days. The father was to be allocated temporary sole parental responsibility for the child. The mother was to hand the child over to the father. The mother was to have reasonable parenting with the child. I am not sure what that means.
That the mother appear in court for the adjourned date of 5 March 2019.
The mother’s lawyers receive a letter from the father’s lawyers on 14 January 2019 seeking to enforce the 11 January 2019 orders of the F County court.
Again, the mother asked the father to cease the proceedings in America and the child spend two occasions with her dad. Undertakings would be given. There is some argument or some correspondence between the lawyers on 25 January about the father’s time with the child. The father agrees and undertakes that he will not remove the child and he will have time with the child in accordance with the proposal put forward by the mother. He signs the undertaking. The father has had time with his daughter each week since, at least, 25 January 2019 and on two occasions, at least, prior to that.
The matter comes before a Registrar of this Court on 11 January 2019. Directions are made for the matter to be further listed on 8 April 2019.
On 19 February 2019 when the matter has been before the Australian Court the father again enlivens the F County court proceedings by filing a further emergency notice of motion/emergency petition in the F County court, seeking the interim orders made 11 January 2019 to be made on a final basis so they can be registered in the Family Court of Australia. He also files a petition seeking the mother pays costs and other incidental issues.
The mother’s City D solicitors are served with this petition. She is informed by this on 21 February 2019 and she seeks an urgent hearing to stay the father’s petition and the matter is before me as a consequence of that application.
However, the Judge, true to herself, or himself, continues the proceedings in the F County court and on 22 February 2019 makes the following orders:
Adjourning the father’s emergency petition to 5 March at 9.30. But unless the parties reach a complete resolution of all outstanding issues the independent children’s lawyer or the GAL is ordered to present the court with a proposed budget for travel to Australia to prepare an action under the Hague Convention which will be paid for by the father without prejudice and subject to reallocation. Unless the parties reach a complete resolution the mother is ordered to appear in court on 5 March 2019.
One may wonder about the efficacy of Hague Convention proceedings when both parents are citizens of this country, the child is a citizen of this country, they all live in Australia, and although the child is a citizen also of the United States neither of her parents have a legal capacity to live in that country, or a right to live in that country. However, they were the orders made by that court.
So as one can see since these proceedings were commenced by the mother in January 2019 the husband has pursued what he regards as his rights in the F County court and, in particular, he is keen to ensure that those coercive orders the Judge made on 11 January 2019 are registered as final orders or orders in this court and thus become orders of the Family Court of Australia.
It must be also remembered that all of the orders made by the Judge post 10 January 2019 were made when all parties, including the father and the child and the mother, were living permanently in Australia, a country of which they are citizens.
The basis of the father’s decision on these facts are in the absence of the father’s version of events, which I must have at some point and I have made directions for that. It is his persistence in enlivening litigation in America, even after the mother had commenced proceedings in Australia proceedings to which he was entitled to respond and to participate in in order to spend time with his daughter in accordance with the initial orders made in October 2018 and alter in November 2018.
Those orders were that his daughter aged 18 months of age spend two days a week with him and one night. As the mother says at paragraph 24 of her affidavit of 10 January 2019 she had concerns at the time she agreed to orders for X to spend overnight time with her father, but the child’s guardian ad litem recommended this as appropriate. The orders she knew were temporary orders, not permanent orders, and thus she agreed. It was also clear that the parties had reached a memorandum of understanding at the mediation on 20 November 2018 to at minimum return to Australia and not attend the scheduled hearing on 13 December 2018 before the Judge in the F County court.
From my reading of the evidence neither parent attended that event. The wheels fell off what appeared to be a fairly cooperative arrangement between the mother and father when after returning to Australia the mother did not agree to the father removing the child and having her for a whole day or overnight or for any period in the absence of the mother being present. The child has spent time with her father commencing January 2018 since they all returned to Australia and it has occurred without any incident, as the chronology attests.
I share the mother’s concerns that the father, effectively, reopened or re-enlivened the American proceedings after they had all arrived in Australia because he did not get his way and did not get the time that he believed was appropriate with his daughter that had been made by orders in the F County court. This is in circumstances where this little girl’s entire living arrangements had changed. She was no longer living in America, no longer living with her parents, but had been removed to Australia and was solely living with her mother. One may consider there might have needed to be some change to any interim orders which were made in America at a different time and a different phase of the parties’ lives.
The father’s actions and motives will require his explanation. I am sure that will be forthcoming. However, the consequences of his actions for the mother and his now 19 month old daughter, a mother who has clearly been even on his evidence the primary carer and parent for this little girl given the husband’s work commitments and obligations to financially provide for his family, have been profound.
In her absence she has, without cross-examination been found guilty of contempt, incarcerated until she perjures her contempt by paying a $10,000 bond in cash, has to hand her child over to the father, a father who has never had sole care of this child, who has a job in Australia which he has returned to and has no specified time with the child.
For X the orders that the father is so desirous of enforcing and registering in Australia may result in her being to be removed from the care of her mother to her father’s sole care, a man who works full-time, for he to have sole parental responsibility according to the orders of the F County court, temporarily, I accept and for the mother to return to the F County court on 5 March 2018. For what one might ask?
Further the Judge has made orders on 22 February 2019 to prepare for a Hague matter when neither parent can live in America.
The Hague matter may be a very difficult application to pursue and I am unsure what was happening on that particular occasion in that Court.
What is clear is that the child has to live with either one of her parents. They are only Australian citizens and neither of them can live in America. The family is in Australia with their daughter. I am clearly seized of jurisdiction to hear and determine the mother’s application on the specific issue before me at this interim hearing. My power is confirmed by section 69H(1) of the Family Law Act 1975 and 69E of the Act is satisfied as both parents and the child are in Australia.
Looking as I must at case law, the decision I was referred to by the mother’s counsel was Pascarl & Oxley[1]. The Full Court said this:
We do not understand anything said by the Full Court in Karim & Khalid[2] being that the principle to be applied in parenting cases which involved a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interest test, whether or not a child is within the jurisdiction then that is the test and not the test of forum of convenience which will apply. In that particular case it was not clear to the court whether the child was in the jurisdiction.
[1]Pascarl & Oxley [2013] FamCAFC 47.
[2]Karim & Khalid [2007] FamCA 1287.
None of that rationale applies here. Everyone is in the jurisdiction, including the child. Therefore, it is clear, as the court said, the principle on which to decide whether the court should exercise its jurisdiction must be determined by the best interests of the child as being the paramount consideration. The submission by Mr Wahhab that because all that the father sought to do was register or obtain a certificate to enable registration of an overseas order that my jurisdiction in relation to the best interests of the child was not enlivened is rejected by me.
I must, when making decisions, have cognisance of the consequences of a decision I am making upon a child. As I have set out clearly, there are profound consequences of, as I see it, a significant adverse nature by the registration of this F County order of 11 January 2019 being registered in this court and thereby regarded as an order of the Family Court of Australia.
This is clearly a child-related application that the mother seeks I entertain. The consequences for the mother and the child of a registration of this extraordinary order made 11 January 2019 in the F County of State E are profound and of concern to this court given what flowed later.
The mother may be deprived of her liberty. The child will be deprived of the care of her mother. The mother will be, perhaps, incarcerated in another country without friends, family or any money. It would appear that the F County court is of the view that this child should be returned to live in America when neither of her parents can live in that country having regard to the latest set of orders made by the Judge. The child is 19 months of age for whom the mother has been her primary carer.
These orders were made by the F County court of State E when all parties lived in Australia, were citizens of Australia and when there were proceedings on foot in this court, a court seized of jurisdiction, about the very issues that the father continued to re-enliven in America.
Mr Quinn opined the father’s conduct amounted to an abuse of process. That is a matter for a final hearing, but it certainly is conduct that requires explanation, particularly post 10 January 2019. To permit this order, the order of 11 January 2019 of the F County court of State E, or any order of the Judge to be registered in the Family Court of Australia, giving it the status of an order of this court, is clearly a matter affecting the child and, therefore, the paramountcy principle and the best interest applies. It is an order in the child’s best interests that the F County order of 11 January 2019 is not registered given the possible consequences for the mother and child of the registration of this order.
Therefore, I find the mother’s application must succeed.
It is an order in the child’s best interests that the father be injuncted and restrained from doing any act or thing to obtain a certificate of enforceability of the order made by the F County court of State E on 11 January 2019, or any other act or thing to cause that order to be registered in the Family Court of Australia or any other court having such jurisdiction under the Family Law Act 1975.
The proceedings were from the parents’ position, as I read the evidence and the chronology, completed in America at the time the wife and child and the father shortly followed to permanently live in Australia.
The father enlivened the proceedings after they had all settled in Australia when this court was clearly the court with jurisdiction given that the parties and the child all lived in Australia permanently. If the father wishes to agitate a forum argument he may. It is a matter for him what he raises in his application.
There is no prejudice to the father in my order of today. If I am wrong, and he convinces me I am wrong on the next occasion, I can lift the injunction made today.
There is a significant prejudice to the mother and a consequent significant harm to the child if the injunction is not granted having regard to the draconian nature of the orders pronounced by the F County court on 11 January 2019 and thereafter.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 28 February 2019.
Associate:
Date: 21 May 2019
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