Mady & Farha (No 2)

Case [2022] FedCFamC1F 1022


Federal Circuit and Family Court of Australia

(DIVISION 1)

Mady & Farha (No 2) [2022] FedCFamC1F 1022

File number: SYC 5754 of 2018
Judgment of: CAMPTON J
Date of judgment: 20 December 2022
Catchwords: FAMILY LAW – PARENTING – Application by the mother to travel to Country L with the parties’ child – Where the extended maternal family resides in Country L, including the maternal grandmother and three of the mother’s sisters – Where the child has not spent time with the father for more than two years – Where the proceedings are listed for trial within six months – Where the Court holds concerns that the mother may retain the child in Country L – Application dismissed.
Legislation:

AustralianPassports Act 2005 (Cth)

Family Law Act 1975 (Cth) ss 60CA, 60CC, 64D

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:

Line & Line (1997) FLC 92-729

Mady & Farha [2022] FedCFamC1F 306

Division: Division 1 First Instance
Number of paragraphs: 29
Date of hearing: 19 December 2022
Place: Sydney
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Mr Skaf, Legal Aid NSW Domestic Violence Unit
Solicitor for the Independent Children's Lawyer: Ms Yu, Kathryn Renshall Lawyers

ORDERS

SYC 5754 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MADY

Applicant

AND:

MS FARHA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

20 DECEMBER 2022

THE COURT ORDERS THAT:

1.The Application in a Proceeding of the mother filed 21 November 2022 be dismissed.

2.A copy of these orders and reasons be released to the Legal Aid Commission of New South Wales.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

CAMPTON J:

  1. These are proceedings as to the parenting of a child, X, born 2014 (“X”). X lives with the mother. She has not spent time with the father since late 2020, being in excess of two years.

  2. The proceedings were commenced by the father on his filing of an Initiating Application in the Federal Circuit Court of Australia (as it was then) on 7 September 2018. The parents are from Country C and married in Country C in mid-2011. X was born…

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AGLC
Mady & Farha (No 2) [2022] FedCFamC1F 1022
Case
[2022] FedCFamC1F 1022
Decision Date

CaseChat Overview and Summary

The case of Mady & Farha (No 2) involved a dispute between the parents of a child, X, regarding the issuance of a travel permit for the child to travel with the mother to Country L. The father opposed the issuance of the permit, arguing that the mother's ties to Australia were tenuous and that there was a risk that she might not return to Australia with the child. The mother, on the other hand, argued that the child's best interests would be served by the travel, given her stronger ties to Country L. The case was heard in the Family Court of Australia. The central legal issue in the case was whether the mother had sufficient ties to Australia to ensure that she would return to the country with the child if granted permission to travel. The court was required to consider the relevant provisions of the Family Law Act 1975 (Cth) and the Full Court's decision in Line & Line (1997)FLC 92-729.

The court considered the evidence presented by both parties and found that the mother's ties to Australia were tenuous. The mother had casual employment in Australia and the child attended school there, but the majority of the maternal family lived in Country L, and the mother had no family other than the child in Australia. The court was also concerned that the mother opposed the child spending any time with or communicating with the father. The court held that the mother's tenuous ties to Australia, coupled with her opposition to the child's contact with the father, raised concerns about the risk of non-return. The court was also mindful of the Hague Convention on the Civil Aspects of International Child Abduction, which Country L was a signatory to.

The court ultimately decided that the risk of non-return was too high to grant the mother permission to travel with the child to Country L. The court found that the mother's ties to Australia were not strong enough to ensure her return, and her opposition to the child's contact with the father was a concerning factor. The court held that the child's best interests would be served by denying the mother's application for a travel permit. The court did not make any specific orders regarding the child's contact with the father, but it did note that the mother's opposition to such contact was a factor in its decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

During the hearing, the father submitted that notwithstanding the submission made on behalf of the mother, her ties to Australia are tenuous. It was his contention that the mother’s allegations of family violence are not credible and are a device that she has used to exclude him from X’s life. He gave a number of examples during submissions of supporting such contention and how he proposes to establish them at trial. He raises that, without explanation, the mother refused to let the paternal grandparents spend time with X when they travelled to Australia this year. He implicitly sought to draw an inference that this conduct illustrates an absence of bona fides on the part of the mother.The law and consideration Orders permitting parties to travel with children outside Australia are parenting orders within the definition of s 64D(2)(i) of the Family Law Act 1975 (Cth) (“the Act”) and hence attract the mandate provided by s 60CA of the Act, being that the Court must regard the best interests of a child as the paramount consideration when deciding whether to make a particular parenting order. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests. I will refer to those which are relevant in this case and have not been identified earlier in these reasons. Further to the relevant s 60CC considerations, the Full Court in Line & Line (1997)FLC 92-729 held that I am required to assess the degree of risk, if any, of the children not being returned to Australia if they are permitted to travel internationally and set out the considerations to which I ought turn my mind in assessing that risk of non-return, as follows:(a)The existence or otherwise of continuing ties between the travelling parent and Australia;(b)The existence and strength of possible motives of the travelling parent not to return to Australia;(c)The existence and strength of possible motives of the travelling parent to remain in the other nominated country; and(d)Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). On the very limited evidence before me, I am apprehensive about the mother’s ties to Australia being sufficiently strong so as to satisfy me that she would return to the country if she were permitted to travel with X. She gives evidence to some tenuous connections in Australia, being that she has casual employment here, that she has studied here and that X attends school in Australia. It appears on the evidence that at least a majority of the maternal family lives in Country L, and that the mother has no family other than X in Australia. The mother offers now security as a condition of travel. The mother opposes X spending any time with or communicating with the father. While the mother said that she has no right to residency in Country L, nor any source of income to support her there, she deposed to family who have significant resources to support her if she elected not to return to Australia.