Kattan & Nahas

[2021] FamCA 461

FAMILY COURT OF AUSTRALIA

Kattan & Nahas [2021] FamCA 461

File number(s):

BRC 10442 of 2016

Judgment of:

BAUMANN J

Date of judgment:

30 June 2021

Catchwords:

FAMILY LAW – CHILDREN – Where the Respondent says the Applicant’s Initiating Application is doomed to fail – Where the Respondent seeks the application be summarily dismissed –Where the Applicant seeks that the children live with him overseas – Where only part of the Applicant’s application is doomed to fail – Orders seeking the children reside overseas with the Applicant summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) s 45A

Family Law Rules 2004 (Cth)

Cases cited:

Beck & Beck [2004] FLC 93-181

Friar & Friar [2011] FamCA 71

Line & Line (1997) FLC 92-729

Number of paragraphs:

31

Date of last submission/s:

18 June 2021

Date of hearing:

18 June 2021

Place:

Brisbane

Solicitor for the Applicant:

Self-represented

Solicitor for the Independent Children's Lawyer:

Mr S Seth, Seth Solicitors

Solicitor for the Respondent:

Mr L Bertrand, Sterling Law (Qld)

ORDERS

BRC 10442 of 2016

BETWEEN:

MR KATTAN

Applicant

AND:

MS NAHAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	30 JUNE 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the Applicant’s application for the children, X born … 2005, Y born … 2010 and Y born … 2012 (“the children”) to live with him outside of Australia and in Country B is summarily dismissed.

2.That the Court identifies the main issues requiring determination at a final hearing to be:

(a)parental responsibility for major long term issues;

(b)whether, and on what conditions (if any), the children should be permitted to visit the father in Country B; and

(c)whether, and on what conditions (if any), the children spend time with the father in Australia (noting an Airport Watch List Order remains in existence).

3.That the remaining issues for determination by the Court are listed for Final Hearing for not more than two (2) days commencing at 10.00am (Queensland, Australia time) on 7 October 2021 in the Family Court of Australia at Brisbane by video via Microsoft Teams.

4.That each party shall file and serve on each other no later than 4.00pm on 9 September 2021, any affidavit material to be relied upon in respect of the issues in dispute, as identified in this Order.

5.That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 9 September 2021.

6.That each party file and serve on each other no later than 4.00pm on 30 September 2021, a case outline setting out:

(a)a precise minute of the final orders sought;

(b)a relevant chronology; and

(c)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

7.That in the event that either party wishes to cross examine the family report writer at the Final Hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 16 September 2021.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kattan & Nahas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. The parents in this matter, the father, Mr Kattan (now aged 50 years) and the mother, Ms Nahas (now aged 35 years) were married in Country C in 2004 and divorced in Country H and also Country D in accordance with their religious custom, before their separation finally in 2013.

2. The parents have three children who are the focus of this dispute:

   ·X born in Country C on in 2005;

   ·Y born in Australia in 2010; and

   ·Y born in Australia in 2012.

3. I am satisfied that the parties lived in the Middle East (either Country C or Country H) from 2004 to 2008 before moving as a family of three to Australia.  Both parents are now Australian citizens.  Whilst living in Australia between 2008 to June 2012, the two youngest children were born.

4. In June 2012, the family moved back to Country C and after separation, the father remarried in 2014 to Ms F.  They have two children, W (aged 5 years) and V (aged 2 years).

5. The three subject children lived primarily with the mother from separation until December 2014, after which the children lived primarily with the father and is new wife Ms F – both in Country B (where the father was working as an engineer) and then for a short time in Australia.

6. When living in Australia, the father, in October 2016, commenced parenting proceedings in the Federal Circuit Court of Australia and interim consent Orders were made by a Judge that, from 8 November 2016, the children would return to reside with the father and spend unsupervised time with the mother three nights a fortnight.  The children were placed on the Airport Watch List.

7. Although there is some controversy about the reasons why the father, his wife Ms F and W left Australia as they did – the mother says abruptly and with no notice to her and evidently left the children in her care solely from 7 February 2017.

8. Since that time:

   ·the three children have remained living with the mother and attended school in local schools;

   ·they have not left Australia; and

   ·the father has not returned to Australia.

9. As a result, the three children - who were aged 11, 6 and 5 years when the father left Australia, have sadly spent no physical contact with their father or their younger siblings for over four years.

10. The proceedings were transferred to this Court in May 2017, after a Judge of the Federal Circuit Court of Australia had made interim Orders, in the absence of the father on 5 May 2017, that the children live with the mother; she have sole parental responsibility and that the children communicate with the father two times a week.

11. The mother describes in her most recent affidavit filed 17 May 2021 how the continuation of this litigation has distressed her.  No doubt the continued position of the father, that the mother is a significant risk to the children and that the children should live with him in Country B, has contributed to that anxiety, within the context of her continued role as a single mother of these children.

12. The appointment of Mr Seth as the Independent Children’s Lawyer facilitated the engagement of Mr G as an expert to prepare a family report.  Mr G first conducted interviews in April 2017, however due to ill health, did not finalise his report until further interviews on 22 March 2019.  His report was filed on 2 April 2019.

13. This critical evidence, once available, enabled the matter to be listed for final hearing, however, the father informed the Court on 15 May 2019 that he intended to return to Australia with his family in November 2019, after the current contract working as an engineer in Country H came to an end.  It seemed preferable for a trial to be held with the unrepresented father in Australia personally, to pursue what was then likely to be a contended residence hearing with the children to live in Australia.

14. What has transpired, however, is that the father did not return to Australia in November 2019 as he indicated; decided to renew his work contract for 12 months; informed the Court in March 2020 that he could not guarantee when he can return to Australia as it depends on his “work situation”; and in March 2020 the father indicated to the Court that he had renewed his work contract for a further 12 months.

15. Because COVID-19 travel restrictions were then (and continue) to be in operation, and where it was clear the father had no current intention to return to Australia, the matter was listed for a final hearing over three days to commence 22 March 2021.  When the matter was listed for hearing, it was anticipated the father would be able to be present in Australia.

16. When the father, in November 2020, informed the Court he had changed his mind about returning to Australia and had renewed his work contract for a further 12 months, the Court vacated the trial dates but directed the husband to file his trial material.  He did so on 4 March 2021 and the mother, who is legally represented with a grant of legal aid, indicated on 22 March 2021 that based on the husband’s sworn testimony, pressed to make an application for summary dismissal of the father’s application.

17. The Application was filed on 17 May 2021, in which the mother seeks the following orders:

    1.That pursuant to rule 10.12 of the Family Law Rules 2004, summary orders are made in accordance with the attached draft minute of orders.

    2.Alternatively, that pursuant to rule 10.12 of the Family Law Rules:

    a.the father’s case is summarily dismissed; and

    b.the mother’s application for final orders be determined without oral hearing.

    3.Alternatively, that pursuant to rule 11.06 of the Family Law Rules, the Court orders, the father’s case be dismissed for want of prosecution.

    4.Alternatively, that pursuant to rule 10.13 or rule 10.14 of the Family Law Rules, the Court Orders that the children live with the mother on a final basis.

    5.Alternatively, that the father’s case be stayed until he returns to Australia.

    6.Alternatively, that the father be required to serve trial affidavits that comply with rules 15.08 and 15.09 of the Family Law Rules by a state time, failing which his case be automatically dismissed.

    7.Any other Order the Court deems fit.

    [Attached draft minutes of orders referred to at proposed order 1 above]

    1.That all previous Orders be discharged.

    2.That the mother have sole parental responsibility for the children X born in 2005, Y born in 2010 and Y born in 2012 (“the children”).

    3.That the children live with the mother.

    4.That the children spend time and communicate with the father as agreed between the mother and the father, and failing agreement as follows:

    a.from 9am until 5pm every second Saturday during periods that the father is in Brisbane; and

    b.by telephone on Tuesdays during periods that the father is outside Australia with such calls to be initiated by the father between 8pm and 8.30pm.

    5.That the father be restrained from taking the children outside the Commonwealth of Australia.

    6.That the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List.

    7.That notwithstanding the immediately preceding order, the mother be permitted to travel with the children outside of the Commonwealth of Australia.

    8.That the parents be, and hereby are, restrained from;

    a.Physically disciplining the children;

    b.Denigrating the other parent to or in the presence or hearing of the children;

    c.Discussing adult issues or the court proceedings with or in the presence or hearing of the children; and

    d.Allowing any other person to do any of the above to, or whilst in the presence of the children.

    9.That each parent keep the others informed of their mobile telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.

    10.That the parents communicate by way of text message or email in all matters relating to the children.

18. The father’s response to this application in a case seeks the following orders:

    25.Final Order Sought by the Father

    25.1.Based on the current father situation where he is living overseas and considering that he might come back anytime, and to avoid returning to the court and the children go through the court process pressure, the request kindly to consider both scenarios (in Australia and outside Australia) to guarantee a meaningful relationship between the children and their father and their siblings (W DOB in 2015 and V DOB in 2019). Therefore, the final orders sought for the children (X DOB in 2006, Y DOB in 2010 and Y DOB in 2012) are: -

    25.2.All previous orders shall be discharged.

    25.3.General orders apply in all situations:

    25.3.1.The parent to make all arrangement available to the children to communicate with the other parent, their siblings, grandparents any time they want through mobile or available social media.

    25.3.2.The children shall communicate through social media any time without supervising of the other parent.

    25.3.3.The cost for the internet communications and a smart phone for the communication should be split half between father and mother in a cost not exceeding 25 dollars monthly each based on official internet invoice and not exceeding 100 dollars each (for one time) for a smart phone which can operate the most used known social media.

    25.3.4.In case of emergency, the parent should communicate with the other parent as soon as possible after ensuring child safety and wellbeing.

    25.3.5.In any time during the children living with any parent, if any child chooses to live with the other parent, the child protection services should remove the child from the parent immediately and call the other parent to arrange to collect them. The sole parenting and any arrangement in this order should be then interpreted considering the new child actual living arrangement.

    25.3.6.That the parents shall not denigrate the other in the presence or sight of the children or others.

    25.3.7.That the parents shall not discuss issues of adult conflict arising from the Court Orders in the presence or sight of the children. However, each parent has the right to explain to the children their rights from this court order.

    25.3.8.Each parent has the right to collect school reports and to attend the children school events.

    25.3.9.Each parent should be encouraging the children to participate in after school activities. Both parents share in half the cost responsibilities of the agreed activities based on official invoices and the parent financial situation.

    25.3.10.The children to attend by a mobile call or video call, after separation a consultancy services once a month for 12 months after the court final order date. The assigned consultant should explain in easy way the court order and the right of the children to the children. The consultancy services shall discuss the content of the family report by the court assigned consultant and the children new life arrangement to make all efforts to allow the children to express themselves with no fear from each parent to help the children pass this stage where they were under pressure. If the children move overseas, online consultancy should be arranged to the relevant consultant in Australia.

    25.3.11.That the parties shall not physically discipline the children under any circumstances or allow someone else to physically discipline the children.

    25.3.12.That the parents communicate by way of text message or email in all matters relating to the children.

    25.3.13.That the parties each keep the other informed of residential address, an email address and mobile number contact at which they can be contacted and provide the other parent with notice of any change to that email address and mobile contact within five (5) days of any change.

    25.3.14.That each parent shall inform the other (in writing) of any serious medical condition that the children have been diagnosed with or suffering from.

    25.3.15.This order operates as an authority for any professional care provider of the children (whether school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the children to both parent request it at their own expense.

    25.3.16.The children to be included in the police watch list unless the court order to allow them to travel to their father outside Australia. In this case, the father has the right to request to issue passports for the children without the mother consent.

    25.3.17.Each parent to facilitate receiving any gifts by the other parent.

    25.3.18.That each parent has the right to open a bank account in each child name supervised by the parent who wants to open it.

    25.4.If the father is in Australia:-

    25.4.1.The children to live with the father.

    25.4.2.The father to have the sole parenting responsibilities in all children matters.

    25.4.3.To allow the father to travel with the children for holidays without the mother consent.

    25.4.4.The father has the right to apply for passports without the mother consent.

    25.4.5.Biweekly, the mother to take the children from the school at 3pm every Friday and to return them to the school on Monday at 8am.

    25.4.6.In Schools terms breaks, the mother to collect the children from the school on last school day at 3pm and to return them on the following Friday on 3pm to the father’s house to spend the second week with their father and their siblings.

    25.4.7.In one day, public holidays, the mother collects the children from their house on 10 am and return them by 5 pm or as agreed in writing between the father and mother.

    25.4.8.In public holidays more than one day, the parent to agree it on yearly plan in writing on first week of the year based on half time each.

    25.4.9.In School Summer holidays, the mother to collect the children on the last school Friday to spend 10 nights with her. Then to return them to the father house at 10 pm on the eleven day. The mother to collect the children also for another 10 nights starting from 15th day before the official announced school starting date and return them after 10 nights in the eleven day at 10 am.

    25.4.10.In children birthdays, the children to spend one-year birthday with one parent and the next year in the other parent place. In case the child is with the other parent because other order points, the parent should deliver the children to the parent who has the turn for the birthday.

    25.4.11.Similarly, for the Eid Ramadan and Eid AlAdha festivals, one Eid with the parent and next one with the other parent as they plan in the beginning of the January every year. In the next year, it would be the other Eid for each. In case the children are with the other parent because other order points, the parent should deliver the children to the parent who has the turn for the Eid time.

    25.4.12.For education, the children should attend public schools with good record. The mother to attend any event the mother chooses to be part off. The mother can request their reports

    25.4.13.In religion matters, the father is the responsible parent of any related religious decisions.

    25.4.14.For children agreed daily and weekly activities after school, the mother to collect the children from the father’s house to attend with the child the activity and return the child to the father’s house immediately after finishing the activity. The father will do the same in the following week.

    25.5.If the father is living outside Australia:

    25.5.1.The children to live with the father overseas.

    25.5.2.The father to have the sole parenting responsibilities in all children matters.

    25.5.3.To keep the children in the police, watch list and allowing the children to travel only with the father without the mother consent.

    25.5.4.The father has the right to apply for children passports without the mother consent.

    25.5.5.The mother to communicate with the children by phone or any available social media anytime with consideration to the time zone differences and children schooling and time arrangement.

    25.5.6.The children can communicate with the mother and grandparents through social media when they want.

    25.5.7.If the mother chooses to visit the children where they live overseas, to coordinate and agree with the father through an agreed written agreement between the parents and witnessed by at least one wittiness,

    25.5.8.When the father and the children visit Australia, the mother to have the children for some days based on the 50% of the number of days they are going to be in Australia and the visit purpose through an agreed written agreement between the parents and witnessed by at least one wittiness.

    25.5.9.Depends on both parent’s financial capacity and based on half share of the travel cost, the parents might agree on the children to travel and visit the mother during school break. A children special travel arrangement should be arranged for such travel if the parent is not accompanying them.

    [Other orders sought]

    1.Request the case to Stay and to proceed to the hearing.

    2.Request a leave to submit a full response to the mother’s new application if the court did not reject it.

    3. Request a leave to submit a full response to the consultant family report.

    26.Interim Order Sought by the Father

    26.1.The case to Stay and to proceed to the hearings.

    26.2.To remove the children from the mother parenting and to allow them to travel to their father.

    26.3.To appoint the family consultant Mr. G to do a final family report considering the children situation now and before, the children wishes and his analysis of it and the situation of the father and the mother now.

    26.4.To force the mother to allow the children for open communication with their father, their siblings, his family at any time using video calls and social media communication.

    26.5.To stop the mother form traveling overseas and leaving the children alone.

    26.6.To stop the mother from sending the children to the mosque alone or without her direct supervision outside of the normal prayer times.

    26.7.To register X in the nearest stat school.

    26.8.To arrange a consultant to visit the children to explain to them their rights to communicate with their father and sibling without the mother policing the calls and whenever they want using any social media or calls.

1. On 18 June 2021, the Court considered the material filed; the comprehensive written submissions prepared and filed by the solicitor for the mother; and heard oral submissions from the father (appearing by video via Microsoft Teams from Country B), the mother’s solicitor, Mr Bertrand and the Independent Children’s Lawyer, Mr Seth.

   PRINCIPLES

2. Although Mr Bertrand in his written submissions relies upon a number of Queensland Court authorities (which do not deviate substantially from the jurisprudence in this jurisdiction), it is better to draw on the principles from binding Full Court authority under the Family Law Act 1975 (Cth) (“the Act”).

3. Firstly, the Act does empower the Court to consider summary dismissal (which is formulated in practice by the Family Law Rules 2004 (Cth) (“the Rules”), to which Mr Bertrand refers in his application).

4. Section 45A of the Family Law Act 1975 provides:

   No reasonable prospect of successfully defending proceedings

   (1)The court may make a decree for one party against another in relation to the whole or any part of proceedings if:

   (a)the first party is prosecuting the proceedings or that part of the proceedings; and

   (b)the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

   No reasonable prospect of successfully prosecuting proceedings

   (2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

   (a)the first party is defending the proceedings or that part of the proceedings; and

   (b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

   When there is no reasonable prospect of success

   (3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:

   (a)hopeless; or

   (b)bound to fail;

   to have no reasonable prospect of success.

   Proceedings that are frivolous, vexatious or an abuse of process

   (4)The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

   (5)To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

   Costs

   (6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.

   Action by court on its own initiative or on application

   (7)The court may take action under this section on its own initiative or on application by a party to the proceedings.

   This section does not limit other powers

   (8)This section does not limit any powers that the court has apart from this section.

   Note:         Part XIB also gives courts powers relating to vexatious proceedings.

5. The principles to be applied and often referred to in these cases were summarised by the Honourable Justice Finn in Friar & Friar [2011] FamCA 71, as follows, citing Beck & Beck [2004] FLC 93-181:

   17. … (see Bigg v Suzi (1998) FLC 92-799 at 84,973-84,974; and also Pelerman v Pelerman (2000) FLC 93-037 at 87,582):

   “‘(a) The power for summary dismissal is a discretionary one.

   (b) Relief “is rarely and sparingly provided”.

   (c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.

   (d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.

   (e) “If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.

   (f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.’

   In determining an application of this nature … the rule … is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608).”

   …

   20.Further support for the proposition that an application for summary dismissal must be determined on the basis only of the material put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi) where his Honour said:

   "... 2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)”

6. After hearing submissions on 18 June 2021, I indicated that the Court would summarily dismiss part of the father’s application - the application that the children live with him in Country B – but that other relief sought by the father could proceed to a final hearing.  The Independent Children’s Lawyer supported that approach.  I indicated I would provide published Reasons for the Court’s orders (now provided) and these are those Reasons.

   DISCUSSION

7. The father’s application for the children to live with him in Country B is summarily dismissed because:

   (a)taking the father’s evidence at its highest, the mother does not present as such a risk to the children’s care that would persuade the Court to order the children live in Country B – against their express wishes;

   (b)the father’s bold claim that the mother has in some way “brainwashed” the children to express the clear wishes recorded by Dr J in her updated (children’s wishes) report dated 21 April 2021, is not supported by any evidence, but understandably from the father’s perspective, are suspicious;

   (c)the children’s clear wishes not to live in Country B, even though all children express a wish to spend time with the father in Australia, should be seen in the context of the following undisputed facts:

   (i)The father left Australia in February 2017 and has not returned, despite promises to do so;

   (ii)The oldest child, X, soon to turn 16 years, is settled in Australia; enjoys his school, friends and extra-curricular activities.  He has memories of being in Country B and other parts of the Middle East with his father, and although he expresses an interest in visiting his father, he is concrete in his thoughts about remaining in Australia to complete, at least, his education.  There is no reasonable prospects of the father persuading a Court, in the circumstances, that X should live in Country B;

   (iii)Although the two youngest siblings of X do not have the same likely recollection of being in Country B, they have become primarily attached to their mother as a result of being with her solely for over four years.  She provides well for their needs (both emotionally and psychologically) and whilst the evidence of the father is that he has, in the past, demonstrated his capacity to meet the children’s needs as the primary carer as well, the passage of time since February 2017 and last physical contact with the father means, in the Court’s view, there is no reasonable prospects of the Court being persuaded that it is in the best interests of Y and Y at this time that they live with the father in Country B;

   (iv)The mother has, for her articulated reasons, deposed to her intention to remain living in Australia.  An order that the children (or any of them) live in Country B would result in the relationship between the children and their mother, being put at risk of severance;

   (v)Whilst the father might say his relationship has been put at risk with the children whilst he has lived overseas since 2017 (and not returned), the difference is that, as a consequence of his decisions to maintain a 23 year working history as an engineer in the Middle East, with only two weeks holiday a year – even without a pandemic – his ability to return to Australia, even for a holiday, is limited.; and

   (vi)I am not critical of the father maintaining his employment.  He has his current wife and two infant children from that marriage to support.  There is no evidence he provides child support for X, Y and Y, and he offers, in his evidence, no explanation for leaving the mother to solely meet the needs of the three children who are residents of Australia with the assistance of Government support.

   ORDERS

8. Because of the history, as set out above, I am not persuaded that the father’s application for equal shared parental responsibility is doomed to fail.  The father, if he wishes to do so, can press for orders that the children visit him in Country B, however in doing so, he would need to demonstrate that the mother’s fear that, if allowed to leave Australia, the children will not return, has no basis.  He would do well to consider decisions like Line & Line (1997) FLC 92-729, where the Court considered circumstances where security in the form of cash might be required before the children are permitted to leave Australia to some non-Hague Convention country.

9. There is no real conflict that if the father is in Australia for a holiday, then the children should spend time with him.

10. As to whether or not the children would be ordered to live in Australia with the father, very much depends on when that could be likely to occur.  On the current evidence (and the father’s Response is equally ambivalent as to timing), it is highly speculative as to whether the father will be in a position to return to Australia at all.  Understandably, his wife and two infant children are settled in Country B and, at least W, would have been attending school.

11. The orders at the commencement of these Reasons identify the issues which remain for determination.

12. In circumstances where I accept the matter requires finalisation, I have set out trial dates and dates for the filing of any further evidence in respect of the remaining issues to be determined.

13. Travel restrictions currently in force, even for returning Australian citizens, and where the father only has two weeks’ holiday a year, means the only real way the matter can proceed to a final hearing is by Microsoft Teams.  The recent attendance by the father using this electronic platform reveals that this highly educated and competent, English speaking litigant is computer literate as well.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       30 June 2021