Naderi & Wakim (No 3)

Case [2023] FedCFamC1F 479

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Naderi & Wakim (No 3) [2023] FedCFamC1F 479

File number(s): SYC 7996 of 2021
Judgment of: SCHONELL J
Date of judgment: 14 June 2023
Catchwords:

FAMILY LAW – PARENTING – Interim orders – Where the mother and children reside in Australia and the father resides in Country B – Where the mother sought sole parental responsibility and for the children to live with her – Where the father sought equal shared responsibility and for the children to visit him twice a year in Country B – Where there is a risk the children will not be returned – Where there is no need to make an order for parental responsibility at this stage – Order made for the children to live with the mother.

FAMILY LAW – FINANCIAL – Where mother sought for the father to provide her with funds to meet her costs of the litigation – Where she sought an order for a lump sum or a dollar for dollar order – Dollar for dollar order made.     
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 69ZL, 117
Cases cited:

Adamson & Adamson [2018] FamCA 523

Atkins & Hunt and Ors (2018) 57 Fam LR 128; [2018] FamCA 14

Charisteas& Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160

DeLuca & Farnham & Anor [2019] FamCAFC 100

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26

Line v Line (1997) FLC 92-729; [1996] FamCA 145

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 FamLR 123; [2005] FamCA 158

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Selena & Montez and Ors [2017] FamCA 583

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Division: Division 1 First Instance
Number of paragraphs: 106
Date of last submissions: 7 June 2023
Date of hearing: 12 May 2023
Place: Sydney
Counsel for the Applicant: Mr Cummings SC
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondent: Mr Richardson SC
Solicitor for the Respondent: Barkus Doolan Winning
The Second Respondent Did not participate

ORDERS

SYC 7996 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS NADERI

Applicant
AND:

MR WAKIM

Respondent

MR N WAKIM
Second Respondent

order made by:

SCHONELL J

DATE OF ORDER:

14 JUNE 2023

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.The applicant mother, Ms Naderi, born 1977 (“the mother”) and the respondent father, Mr Wakim, born 1972 (also known as Mr Daouk) (“the father”), their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, Y Wakim born 2006 (also known as…

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AGLC
Naderi & Wakim (No 3) [2023] FedCFamC1F 479
Case
[2023] FedCFamC1F 479
Decision Date

CaseChat Overview and Summary

Naderi & Wakim (No 3) was a case before the Family Court of Australia that dealt with complex issues of matrimonial property and the welfare of children in an international context. The father and mother, who have four children, were in dispute over the value and ownership of their matrimonial assets, with the mother claiming a significant net value and the father disputing this. The mother also alleged financial intermingling with the father's father. The children had moved to Australia with the mother in late 2020, which the father described as abduction or kidnapping. The court had to decide on the proper allocation of assets, the welfare of the children, and whether the children should be permitted to travel overseas.

The legal issues that the court needed to address included the source and extent of the court’s power to make a dollar-for-dollar order, the appropriateness of such an order in the circumstances, and the best interests of the children concerning their residence and contact with the father. The court also needed to consider the risk of the children not returning to Australia if they were permitted to travel overseas with the father.

The court determined that the mother had a legitimate need for the funds she sought, and that making a dollar-for-dollar order was just. It was found that the mother was the primary carer of the children and had a significant role in their welfare and health care. The court concluded that permitting the children to travel overseas with the father would expose them to a risk of psychological harm, particularly in the case of the youngest child who required ongoing medical care. The court was satisfied that the children's best interests were served by remaining with the mother in Australia. Consequently, the court ordered that the children live with the mother, that they be placed on the Watchlist, and made a dollar-for-dollar order in favour of the mother.

In conclusion, the court issued orders that the children reside with the mother in Australia, that they be placed on the Watchlist, and that a dollar-for-dollar order be made in favour of the mother.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The matter proceeded by way of submissions. As a consequence of some of the submissions made by the father’s senior counsel as to the source of power to make a dollar for dollar order and the form of the dollar for dollar order, the mother’s senior counsel sought a further 14 days in which to fine tune the proposed dollar for dollar order. Once that order was received, I made a direction in chambers that the parties could file such further written submissions as they wished to make in relation to the Amended Minute of Order. Such written submissions are identified above in the material relied upon by each party.BACKGROUND The father was born in 1972 and is 50 years of age. The mother was born on in 1977 and is currently 45 years of age. The parties are at issue as to the date of marriage. The mother says one date 1998, while the father says another. There are four children of the parties’ marriage, namely Ms W aged 21, X aged 18, Y aged 17 and Z aged 11. During the course of the parties’ marriage, they have lived between Country B and Australia, albeit it would appear that up until November 2020, the parties had spent the substantial part of their married life in Country B. There is a dispute between the parties both as to the size of the matrimonial pool of assets as well as ownership. In that respect, the mother contends that the net matrimonial pool has a value of in excess of $38,000,000. The father does not accept this figure. The mother asserts that there is a degree of financial intermingling of their property with that of the father’s father. In her affidavit, she says:58. Throughout the relationship, [the father] and his father worked together and intermingled their finances in [Country B] and Australia. During the periods that [the father] and/or I were in Australia, I observed [the father] use credit cards in his father's name or receive cash from his father for living and day to day expenses in Australia. …63. During the relationship, [the father] also transferred various funds from our accounts in [Country B] to his father’s accounts in Australia to purchase properties and to build developments. I have not received full and frank financial disclosure from [the father] to understand what he contends is his property in Australia. As a result of [the father] and [Mr N Wakim] intermingling their finances during the relationship, I do not know if [the father] has an interest in any properties or entities in [Mr N Wakim's] name. …77. [The father] filed a Financial Statement in these proceedings on 8 March 2022. In that Financial Statement, he disclosed funds at bank of $2,726,680 as his own. This does not include millions of dollars he asserts as funds he holds on trust for his family members in his Financial Statement. (Mother’s affidavit filed 3 April 2023) The mother contends she was the primary carer of the parties’ children. The mother says that in late 2020, she and the children returned to Australia. The father describes the mother’s move to Australia in various terms including that she abducted the children and/or kidnapped them.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am satisfied, weighing all of these matters in the balance, that the mother has a need for the funds that she seeks and that the making of a dollar for dollar order is in all the circumstances just. CONCLUSION For the above reasons, I propose to make orders that the children live with the mother, that they be placed on the Watchlist and a dollar for dollar order. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.PRIMARY AND ADDITIONAL CONSIDERATIONS In applying the primary considerations, the benefit to the children of having a meaningful relationship with both parents is subservient to the need to protect the child from the harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties contend that it is important that the children have a meaningful relationship with the other parent. The children currently live in Australia and the father has not visited them since August 2021. The mother is not opposed to the children spending time with the father in Australia. It is entirely within his power to ensure he maintains his relationship with them by visiting them in Australia. He proffers no reasons as to why he cannot come to Australia to maintain his relationship with them even for a short trip nor why their best interests are served by travelling overseas as unaccompanied minors. In relation to the father’s application to have the children travel overseas, the mother contends that there is a risk that the children will not be returned. If that happened, I am satisfied it would expose both children to a risk of psychological harm in that they would be separated from their primary carer as well as the medical and health professionals who are involved in their care. If that were to happen, there is a risk that Z would not receive the medical care that he needs given what is said to be the father’s attitude to his diagnosis of ADHD. The father contends that Z has already suffered trauma (father’s affidavit, paragraph 184). If he were separated from his primary carer as a consequence of a non-return to Australia, then there is a possibility that the trauma he has already allegedly suffered (according to the father) would be exacerbated. An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 and DeLuca & Farnham & Anor [2019] FamCAFC 100, identify a number of factors that are relevant to the determination that I am required to make in assessing the risk of return of the children to Australia. Country B is not a convention country and the father has not proposed any bond to secure the children’s return.