Nejem and Nejem

[2019] FamCA 113

FAMILY COURT OF AUSTRALIA

NEJEM & NEJEM [2019] FamCA 113

FAMILY LAW – CHILDREN – Parenting – where the mother unilaterally brought two children to Australia from Africa.  Where the issue was whether the court should make a summary determination for them to return or conduct an inquiry through a trial to ascertain best interests – where the children’s best interests require a trial here – speedy trial ordered.

Family Law Act 1975 (Cth)

Kwon and Lee (2006) FLC 93-287
Re L (minors) [1974] 1 WLR 250
ZP and PS [1994] HCA 29; (1994) 181 CLR 639

APPLICANT: Ms Nejem

RESPONDENT: Mr Nejem

FILE NUMBER: MLC 13698 of 2018

DATE DELIVERED: 5 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC With Mr Barbayannis

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Blackwood Family Lawyers

Orders

1. That the application for interim orders filed in the initiating application filed 30 November 2018 is consolidated with the application for final orders filed the same day.

2. That the initiating application of the wife filed 30 November 2018 and the response thereto filed by the husband on 3 January 2019 are adjourned and fixed for final hearing before the Honourable Justice Williams at 10.00am on 2 May 2019.

3. The evidence in chief of all witnesses shall be given by affidavit.

4. To the extent that any party seeks to have a witness give evidence electronically, appropriate notice be given to the other party and to the court prior to the return date.

TIMETABLE:

1. By 4 pm on 15 March 2019 the applicant file and serve upon all other parties:

   (a)       an amended application setting out with precision the orders to be sought;

   (b)       all affidavits of evidence to be relied upon.

2. The applicant pay all required court fees by 4 pm on 15 March 2019.

3. By 4 pm on 22 March 2019 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)       all affidavits of evidence to be relied upon.

4. By 4 pm on 29 March 2019 the applicant file and serve any affidavit in reply.

5. That there be an appointment of an Independent Children’s Lawyer and Victoria Legal Aid is requested to attend to this matter with urgency.

6. By 4.00pm on 1 May 2019 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

7. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

8. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of a family consultant nominated by the Director of Child Dispute Services for the purposes of the preparation of a family report not to be commenced until after 8 April 2019 but to be completed and released by 26 April 2019.

9. The appointed family consultant:

   (a)should consider how the children would cope emotionally and psychologically if they were living in Africa but their mother refused to return to that country;

   (b)should consider how the children would be impacted emotionally and psychologically if they were removed from the school in Australia at which they are currently attending and were otherwise removed from the extra-curricular activities that they currently attend in Australia;

   (c)should consider how the children would be impacted by an absence from their African culture including extended family members if they remained in Australia; and

   (d)should consider the factors in s 60CC of the Family Law Act 1975 (Cth) so far as the consultant considers them relevant and specifically address the issues of;

   i.parental capacity to care for the children;

   ii.        parental responsibility in respect of the children;

   iii.the impact on the children of separation from either parent for any specific periods of time;

   (e)should advise the Court generally about matters of child welfare and development.

   (f)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

10. The appointed single expert/family consultant may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings.

SUBPOENAE

1. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

2. By 4 pm on 30 April 2019 all parties file electronically to … a case outline in one document setting out:

   (a)      the outline of the issues in dispute;

   (b)      the list of the affidavits to be read;

   (c)      a concise set of orders to be sought;

   (d)      the list of objections to evidence requiring a ruling.

AND THE PARTIES SHOULD NOTE:

A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B.Affidavits relied upon for the hearing in February 2019 may be relied upon if the parties agree that they should do so rather than prepare fresh trial affidavit.

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 Nejem & Nejem 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 MELBOURNE

FILE NUMBER: MLC 13698 of 2018

Ms Nejem

Applicant

And

Mr Nejem

Respondent

REASONS FOR JUDGMENT

1. On 4 August 2018 Ms Nejem (“the wife”) left her home in an African country (“Africa”) with two children X aged 9 and Y aged 6 to come to Australia.  She then emailed Mr Nejem (“the husband”) who is the father of X and Y indicating that she was not returning to Africa.  The present dispute is whether the children should be returned.

2. The parenting proceedings filed by the wife on 27 November 2018 seek final orders that the two children live with her in Australia; she also seeks injunctive relief to preclude the husband from taking the children out of Australia.

3. In a response filed 3 January 2019, the husband seeks orders that the children be forthwith returned to Africa.  It is common ground that the Hague Convention does not apply.

4. The critical issue at the hearing on 22 February 2019 was (from the wife’s perspective) whether the court should order a speedy trial of the issues or, (from the husband’s perspective) alternatively summarily determine that the children should go back to Africa for any parenting order determination to be made there. 

5. The distinction between the two positions lies in whether or not the court needs to hear and test evidence or whether it decides it is in the best interests of the children that all of those issues should be heard in Africa.

6. For the reasons that follow, I am satisfied there are issues to be tried here and it would not be proper or in the best interests of the children to determine the matter in the way urged by the husband.  That is not to say that a speedy trial should not occur on those controversial issues and I propose to order that course.

7. One issue affecting the summary approach focussed on whether there had been delay by the husband in bringing an application either here or in Africa.  That issue needs the court to consider the approach that each parent has taken to date.

8. The relationship between the parents in Africa had its problems.  It would also not be correct to say that in August 2018 the wife did not have a desire to return to Australia.  Neither of those two issues is determinative of this outcome.

9. The husband is aged 33 years.  He was born in Africa.  He conducts a business.  The wife is aged 38 years.  She was born in Australia.  On the husband’s evidence, the wife was a significant participant in the business. 

10. The parties’ relationship was of ten years duration.  They met in Africa in February 2008 where the wife was managing a business and the husband was a local service worker.  They commenced living together in December 2008 and married in April 2009.  X was born in the following August and Y in 2012.  Each child was born in Australia to where the husband and the wife had travelled for that birth.  Each child holds dual citizenship.  Since birth, the children have visited Australia annually.  Australia is where the wife’s parents live although those parents have spent time with the parties in Africa.  The parties have another connection with Australia in that most of their safari tour business “international payments” have been paid into an Australian bank account to the extent that they have now accumulated savings of about $600,000.  All of those funds are in the wife’s name in the bank account.

11. On 31 December 2017 whilst visiting Australia, the wife suggested a proposal to the husband that she move to Australia with the children for 12 months.  She indicated she was unhappy in their relationship and thought that a return to Australia might rejuvenate the relationship.  After discussion between the parents, that move did not proceed.  From the husband’s perspective, the parties had reached agreement that the wife’s proposal would not go ahead but from the wife’s perspective, the husband simply refused to countenance any such move.  However, there was subsequent discussion about the possibility of moving to Australia and inquiries were made about visas.  In addition, the husband agrees that the wife’s mother raised the issue of a return to Australia whenever they met.

12. The December 2017 email from the wife to the husband about her proposed move to Australia has an overt message that she was “frustrated by everything” in Africa.  In June 2018, the parties’ electronic message exchange was terse; it was not one-sided and a lack of mutual trust was apparent.  This was at a time when the parties were to come to Australia, or at least the wife was, with the children.  When the parties talked of their children in the June messaging, the wife said she would never “take back” their “beautiful children” by which I understood she meant that she did not intend to live permanently in Australia.  When their electronic conversation turned to money, the tone of both parties was accusatory of the other.  Whilst the wife ended the communication saying she was not ready to “give up” (by which I understood she meant the relationship with the husband) and that the children deserved everyone to be together, that line of messaging was a response to the husband’s suggestion that it might be time to “separate”.

13. The May 2018-June 2018 trip to Australia had been jointly planned but the husband clearly did not trust the wife to return to Africa.  The wife came to Australia alone and the children remained in Africa as the husband refused to allow them to travel despite the fact that not only had there been agreement, but the travel had also been booked.  The only inference I can draw was that the relationship was undoubtedly in difficulty.

14. The parties now dispute about what happened when the wife returned to Africa after that holiday.  She accused the husband of hiding the children’s passports and threatening her that she would not see her family again unless he approved of any contact.  He denied that saying that he “repeatedly” talked of how the children would “continue” to go to Australia as they had done historically.  It is difficult to make any finding about that issue which was, according to the wife, the catalyst for her to leave Africa without the husband’s permission.  However, with what was going on immediately before that time and the husband’s refusal to allow the children to come to Australia, I have drawn the inference that the wife was unhappy about the relationship and indeed, feared that she was being oppressed.  That led to her departure in August 2018.

15. The husband said that the wife’s move to Australia caught him by surprise.  Because of what had been occurring immediately prior to that, that is improbable.

16. These issues are contentious but they shed light on the question of whether or not the departures were unilateral and unexpected.  Regardless, that is not determinative of the issue before the court but it certainly sets the scene and gives some indication of what the children would be returning to.

17. As soon as the wife left Africa, the husband followed her only days later.  In Australia, the parties met up as a family and stayed with the wife’s parents.  They also went to counselling.  There is nothing in the evidence about what they discussed but it must have been clear to the husband that the wife was not, at least then, going back to Africa voluntarily.  This is relevant to the consequential delay by either party, but particularly the husband, in bringing proceedings.  When the husband arrived in Australia in August 2018, he immediately sought legal advice.  That is indicative that he anticipated problems not only in the relationship but also in having the wife agree to the children returning to Africa.  That much can be gleaned from the letter written on his instructions by his solicitors.  The letter was directed to the wife.  It set out the husband’s instructions that she was considering whether the move to Australia was to be permanent or not.  Importantly, it acknowledged she had spoken about enrolling the children in school in Australia.  That is, by that time, the children were not enrolled.  That changed very quickly.

18. The children started at the local primary school at the end of August 2018 that is, only weeks after leaving Africa but also after the husband had just left Australia.  Counselling had taken place and the parties had no resolution of their problem.  The husband now says that he had to return to Africa for business purposes.  The children in the meantime, began participating in local sporting activities and making new friends.

19. The letter from the solicitors for the husband in August 2018 set out that it was the husband’s desire for the children to return to Africa.  The letter warned the wife that the law in Australia was such that she was not entitled to make the decision she had, absent agreement with the husband.  The letter noted that if any decision about the future residence of the children was to be made, the parents had to make that in Africa.  Despite that statement, no legal steps were taken by either parent in August.

20. In September 2018, the husband came back to Australia where he stayed for ten days.  He observed the children at their new school and he involved himself in pick-ups and drop-offs of the children at their school. 

21. The solicitor’s letter said that if the wife did not return, the husband would make an application to a court.  He did not do so.

22. Also in September 2018 and with the husband back in Africa, the parties began communicating electronically but this time, it was about the business and money.  As I have already observed, their money was predominantly in Australia and it is clear from the tone of the correspondence that the husband was worried that the wife was stifling his use, or access to, that money.  The wife continued to correspond in the shadow of the solicitor’s letter.  The tone makes it obvious that a return to Africa was not being contemplated by her at that time.

23. In October 2018, and with no proceeding pending in either country, the wife and the children moved out of her parents’ home into a property that the parties had purchased in Australia in December 2013.  This residence had been the subject of the email discussion in 2017 when the wife had suggested she would move into that house if she stayed in Australia for the 12 months.  The property had been rented so the husband must have known that the wife’s move into the property and with the tenants then having moved out, roots were being set down.  In that same month, and with the husband still in Africa, the parties communicated electronically, according to the husband, about the prospect of the marriage relationship working.

24. The conversation in October had been preceded three days earlier with an evening electronic communication wherein the husband said he “guessed” he understood the wife was “ready for the court”.  The wife said she understood the husband was going to court too but I have inferred that the reference was to the husband taking proceedings in the African country.  Those proceedings had not, and have not, been issued.  In the context of the communication three days later about the state of their marriage relationship, the wife made a stark statement that if the husband proceeded to “win” the court dispute over the children, she would not be going back to Africa.  That led the husband to ask whether, if there was no court, would the wife return to Africa.  She replied she did not wish to discuss the matter further.

25. This last discussion in October had focussed on the husband’s refusal in June to allow the children to travel with the wife to Australia.  In the October conversation and with reference to the June incident, the wife said she “imagined” the “revenge” waiting for her in Africa.  Thus, the June 2018 dispute looms large.  The husband’s refusal to allow the children to go to Australia for a visit has given rise to the wife’s assertion that he is a controlling person.

26. Curiously, as if to defend his position, the husband wrote that he had been coming to the “position” of “agreeing with “Australia movement for you”.  That communication was not referred to in the husband’s affidavit.  He included one that occurred three days later where he asked whether the wife wanted “to work on our marriage” and she replied she had not rejected that idea but that he was making it “nearly impossible” for her to want to.  That was a reference to his controlling behaviour as she saw it.

27. On 27 November 2018, the wife filed the parenting proceedings in this court.  The husband came to Australia in “November/December” and he said that soon after arriving, he attempted to file an application in this court on 4 December 2018 seeking a return of the children.  Of course, by that date, the wife had already filed her application.  The husband then filed a response and an affidavit.  The response was filed in his absence on 3 January 2019 as he had already returned to Africa.

28. In his affidavit which, in the limited hearing could not be tested, the husband said that he had “attempted to negotiate” the return of the children.  I am unsure what that means or, having regard to the parties’ desire for the court to know what their electronic messages had said, why nothing corroborates that assertion. 

29. One of the critical issues in deciding whether to determine the matter summarily or alternatively ordering a more comprehensive testing of the evidence is whether or not the children have been allowed to settle into a new environment.  Whilst the wife may be criticized for her unilateral action, the husband sent her the traditional letter of demand from his solicitors yet did not follow up with any action.  He continued to not only negotiate with the wife about a raft of matters but also visited Australia and participated in family activities.  The period of time here relative to many other cases was not very long but I consider it significant that he took no action whilst not only watching the children set down roots in schools and activities but also participated in those by delivering them to and from school.

1. There is also a controversial issue here about the views of the children.  The husband maintains that they want to go home to Africa.  Should weight should be given to their views bearing in mind their ages?  Decisions about where children live would be expected to fall to parents.  Based upon what both parents say, just what these children know and desire, and their level of maturity and understanding of the adult concepts involved, is troubling and unclear.  Those are matters which should be tested.  The court should also have the benefit of an expert to indicate just how the children are coping absent their African cultural roots. 

2. A troubling but also significant issue is whether the wife means what she says in stating that she will not return to Africa if the children are ordered to go back.  The husband dismisses her statement asserting that she would not be separated from the children and that she is not genuine.  I do not accept that having regard to the consistency of her position.  One of the challenging issues in this case is who has been predominantly responsible for the children’s welfare. What impact would there be on the children if they returned but the wife did not?  The husband’s view seems to be not so much that he could manage all of the parenting roles but rather what role the wife will have if she goes back if the children do.   In my view, having regard to the role that the wife has played, and is playing, in the lives of these children, the wife’s assertion is an issue that needs consideration.  It is another reason why a summary hearing in this case would not be in the best interests of the children.

The nature of the parental relationship

1. On the assumption that either the wife is not going to return to Africa or that if she did, the relationship with the husband would not be in a united or functional family, it is helpful to look not just at what the parents were saying to each other in the period from June 2018 to January 2019 but also prior to that period.  That examination looks at the nature of the family’s relationship and in particular, the relationship of the parents with the children.

2. The wife blandly asserted that the husband was abusive and controlling including harming her physically.  She said his behaviour “escalated” and she started to fear for her safety.  The electronic communication suggests otherwise. 

3. There are many facts within this particular issue that are controversial.  For example, the wife asserted that the husband threw a Rubiks cube at her.  For his part, the husband admitted her threw the cube but not at her.  Whatever occurred, and without testing the evidence, I could make no finding but it is undoubtedly an indication that in 2017, the marriage and parental relationship was problematic.

4. Another example is the wife accused the husband of slapping her across the face.  He admitted that act occurred but asserted she had thrown a toy at him which hit him in the face.  He said he had “reacted”.  This incident was said to be in 2014 but thereafter, the relationship then went on.

5. Other examples included a dispute over the parties having another child.  From the wife’s perspective, upon the husband’s insistence, she removed a contraceptive device.  His response was to say the removal was for medical issues.

6. Each of the examples above points to an enduring unhappiness, punctuated presumably by good times but now, there appears to be a permanence about the end of the relationship whether or not the wife returns to Africa.

7. There are accusations of “excessive” use of alcohol and an extraordinary allegation by the wife that she was “aware” the husband smoked marijuana.  She described his intoxication and how she had “come to recognise” signs of marijuana use.  All of that is emotive but what was its impact upon the husband’s parenting capacity?  The wife said he was “more likely to be physically abusive” to her and the children when intoxicated and the children then “tried to stay out of his way”.  Those are not facts and I have no idea what the wife meant.  Accuracy is important bearing in mind this is an inquiry into the interests of children but those questions are critical to the determination of parenting capacity and responsibility where there is a prospect that either parent may be absent from the lives of these children.

8. When the husband responded to these allegations, he said both he and the wife drank alcohol and at times, to the point of drunkenness.  He admitted to being an occasional marijuana smoker.  The simple denial and cross-allegations means there is a significant issue to be tried here particularly about parental capacity.  The Australian law requires the court to make findings about family violence which impacts upon issues of not just what type of orders should ultimately be made but findings must also be made about parental responsibility on the assumption that responsible parents do not act in a violent way towards each other.  Here, I cannot determine any of those issues. 

9. It will be almost self-evident now that the parties’ views about lifestyle and raising their children in a functional family are very different to what they were.  How will that affect the children if they are returned to Africa? 

10. I know little about how the parents would share the parental responsibilities in Africa even ignoring the wife’s assertion that she will not return if the children are sent back.  Thus, I do not know what the court would be sending the children back to, even though there are legislative and court provisions similar to Australia.  It is to be remembered that the application has not yet been filed in Africa.

Can the wife go back to Africa anyway?

1. Even putting aside the argument about the genuineness of the wife’s desire not to return to Africa, significant evidence was brought by the parties about comparative legal systems.  On a cursory reading, there would appear to be little dispute that the law in the African country and the approach to it by the courts, is similar to that of Australia.  However, the more important question is whether or not the wife could remain in Africa in a number of scenarios.  Those include her return to live whilst there are no proceedings in Africa; if she returned and there were proceedings in Africa and thirdly, regardless of proceedings, what prospect she has in staying in Africa anyway.

2. For the purposes of this issue about court access in the African country, the parties relied on a number of affidavits.

3. Mr C is a qualified lawyer in the African country.  He practises in the immigration jurisdiction there.  There was no opportunity for anybody to test the expertise of any of the witnesses to whom I now refer but I note that this witness has a relevantly modest period of experience subsequent to obtaining his law degree in 2015.

4. Mr C said that a foreigner intending to reside in the African country for investment, business, employment or any other legal activity might be issued with a residence permit.  He described the relevant classes of permit.  Of the three, only two would now appear to be reasonably open to the wife.  The first is specified employment but at the moment she has none.  The second was as a person attending court as a party in a case.

5. The witness said that in respect of the former category, the wife could engage in volunteering activities with local or international organisations operating in the country.  She would have to apply for a work permit.  The validity of the permit focusses around not engaging in any occupation for reward, profit or non-profit unless that had been specified.  Just how the wife would support herself remains to me, unclear.  It may be that she can bring an application in the courts of Africa for financial support but one would expect that she would have to make the application to the court before she could apply for the permit unless of course, she had some other international or local organisation available to support her.  There is no evidence of that.  It seems clear that the nature of the relationship between the husband and the wife has ended any prospect of cooperative working arrangements in their business.  She no longer has the employment she had.

6. If an application was made, according to Mr C, it would take four to six weeks for the visa to be issued.

7. The second class relates to involvement in court proceedings and as such, if either of the parties issued proceedings in Africa, the wife could then make an application for a permit.  No doubt, there is a chicken and egg problem here because the determination of the wife’s future role as a parent may be affected by whether she could have a long term permit to reside in Africa and vice versa.

8. Based on the evidence of Mr C, that evidence needs to be fleshed out so that this court could be assured that the wife would be able to remain in Africa for something other than just an argument over the children.  True it is that if she produced evidence in Africa that she could not remain there without a permit, it may very well affect any relocation application to Australia but in my view, it is important to look at the focus now on what is happening to the children rather than to “crystal ball gaze”.

9. The wife provided evidence by a Ms E who is also an advocate or lawyer practising in the African country.  She has many years’ experience in the law.  She set out the law in the Africa country which looks like that of Australia.  The African courts are vested with powers to compel the return of the children to Australia if their mother obtains an order for relocation.  The witness said that the court would be moved by an application by the wife but that the process was long, costly and time-consuming especially if the “opponent” would not be ready to cooperate.  She went on to say that the process was becoming more efficient and reliable.  There is a temptation to infer that these proceedings would be dragged out in Africa based on those statements but so too, it is well known in Australia that the courts’ delays are inordinately long and the court has been criticised for that.  To overcome that problem however, and most importantly because I consider that there are facts in issue that need to be determined so that an assessment can be made for the best interests of the children, I have arranged for an expedited hearing which will take place in May 2019.

10. The wife also relied on an affidavit by a Mr G who is a senior analyst relating to a “global specialist risk consultancy”.  Over objection, I admitted this evidence.  Again, this evidence should be tested so I have admitted it for a limited purpose.  The wife asserts that there are problems about corruption in the government in Africa and by inference, she may have difficulty obtaining a visa and/or employment.  Mr C said that the husband could not influence ministerial determinations, but Mr G said that there was “anecdotal evidence” suggesting that disgruntled individuals could submit anonymous letters to the immigration division increasing the likelihood of “harassment or temporary detention” by immigration personnel.  He opined that that climate could also provide the husband an opportunity to prevent the wife’s return or extended stay in the country.  He pointed to the fact that again, anecdotally, more than 3000 ex patriots have left the African country in the past two years because of difficulties in securing or renewing permits.  I propose to give that assertion very little weight having regard to the sworn evidence of Mr C who is an immigration lawyer.  However, having regard to the view that I have taken that there is some uncertainty about just how the wife will be permitted to remain in Africa, the parties should have an opportunity to test out some of these propositions more fully.

The connection of the children with Africa

1. In her affidavit (at [11]), the wife blandly asserted that the husband expected her during the time the parties were together to take “primary care” of the children and their “day-to-day needs”.  In her affidavit filed 15 February 2019 at [7], the wife repeated the phrase and added that she was the “primary attachment” figure for the children.  In an affidavit, where at [81], she asserted that various parts of the husband’s affidavit were inadmissible, the assertion she made was unusual particularly because the husband had given context to the roles that each party had fulfilled during their respective times together but she gave little. 

2. “Primary care” is an amorphous term which is often used by lawyers, litigants and courts alike but, without context, is meaningless. 

3. “Primary attachment” figure is similarly an assertion related to how the children see their respective parents and to whom they turn for emotional, as well as physical, comfort, reliance and security. 

4. On the wife’s evidence, the inference to be drawn was that she fulfilled the dual roles of working in the business whilst managing and participating in the children’s care.  The husband responded (at [146]) by pointing out the parties had several staff to manage their home and the children.  Significantly, after school, an employee looked after the children and arranged their dinner.  The husband said that on weekends, as parents, they shared activities including attending church although the wife apparently did not attend.

5. In an affidavit filed 15 February 2019, the wife responded to these issues (at [134]) denying the extent of the husband’s assertions. She also said she asked the children about a number of matters. The wife had questioned the children about being disciplined by the paid staff. She said X told her he had discussed it with his father who “didn’t care”. Significantly in the context of whether or not the wife will return to Africa if the children go back, she said X told her this happened when she was away from them in Australia. Some other examples of what she gleaned from the children suggested their father was not available to care for them. Two observations must be made. First, there is a factual dispute about the connection of the children not just with Africa but also to their parents and particularly, the extent of their reliance upon their parents. Secondly, the fact that both parents have described what the children are saying about their futures indicates to me that they have both been embroiled in this dispute. The children are 9 and 6 years of age respectively and I do not consider I should give weight to their views (see for example, s 60CC(3)(a) of the Act) where I do not have any expert evidence as to their level of understanding as to what is happening to them let alone their levels of maturity to express a view about their financial decisions.

6. Reliance upon the views of children and/or their wishes, about any of the matters such as schooling, friends, cultural norms, extra-curricular activities and their relationships with their respective parents, must be the subject of some form of testing of the evidence.  Most importantly, the court in this case must have some expert evidence about their understanding and maturity to know whether it is best to be determine the question here rather than Africa.

7. The husband argues that the same exercise could be undertaken in Africa but that depends on the wife’s ability to attend Africa let alone the question of whether she will or she will not attend.  I have expressed the concern about the expert saying that there will be costly delays in such a process which at this point in time has not even commenced.  On the other hand, Australia is prepared to provide this case with urgent attention now. 

8. I am most concerned about the impact on the children of change now that they have set down roots in Australia.  A simple return to Africa particularly absent their mother may be difficult for the children.  On the other hand, it may be fine because they will have their father to care for them.  The difficulty is I do not know how they will react.  The simple submission that all of those answers could be found out in Africa is not a proper way to approach what I consider to be the best interests of the welfare and development of X and Y.

The quality of health facilities and education in Africa

1. The children are said by the wife to have had medical problems growing up in Africa although the types (asthma, pneumonia and chest infections) sound remarkably like common childhood illnesses.

2. The wife asserted that in Australia the children would not be exposed to more serious diseases such as might arise in Africa.  The husband responded by denying there was a problem at all, pointing to the fact that he (and the wife) had not suffered from any of those illnesses to date.

3. Issues of medical treatment and educational facilities are not matters that should make any difference to this determination because ultimately, the critical question is whether the respective parents can protect the children from those problems.  In addition, in respect of education either country can look at who of the parents will best encourage them to continue their schooling to the highest possible level. 

The connection of the children with Australia

1. Having determined that the husband has, to a degree, sat on his rights and allowed X and Y to set down roots here, what is their connection with Australia and is it shallow, simplistic and not difficult to change?

2. The wife said the children settled into life here “very naturally and easily” and they have close relationships with her extended family.  At school they have been “doing well socially and academically” making new friends but they are only in the first few years of that schooling.  The husband’s response was that in his conversations with the children, they had told him that they “want to come home”. 

3. Unsurprisingly, the wife acknowledged that the children had spoken in that vein to their father but she said that it was in response to his “direct questions”.  The court has no opportunity to test these propositions or to hear expert evidence all of which go to whether or not a return order would have any consequential psychological or emotional impact on the children particularly if their mother does not also return. 

4. All these children have ever known is their parents in one family.  Thus, what will their lives be like in either country?  A more comprehensive understanding of what impact is necessary if they return to Africa immediately.

5. The approach to the determination in the immediate application therefore requires a consideration of authorities.  I turn to the authorities and to the submissions put by the parties’ respective counsel.

The approach to the determination

1. Both parties provided a list of authorities but after reviewing them, I consider the view expressed by the majority of the High Court of Australia in ZP and PS [1994] HCA 29; (1994) 181 CLR 639, is the approach I should follow.

2. ZP and PS revolved around an order made by a trial judge that a mother who had brought the parties’ child from Greece, in defiance of Greek court orders, should return there for any custody determination to be made.  There was also a question around the timing and genuineness of the mother’s stated position that she would not return to Greece regardless of whether or not the court ordered the return of her child.  The similarities with the present case are evident.

3. In ZP, the majority (Brennan, Dawson, Deane and Gaudron JJ) found error in that considerations other than the welfare of the child had been impermissibly treated as aspects of welfare or had been elevated to criteria equivalent to it.

4. The court said that what must be balanced was the need for a speedy determination against the desirability of adequate inquiry into welfare generally.  It was held that a presumption must not be applied that a child’s welfare was better served in Australia or conversely, by ordering a return to the previous country.  To take the latter option, the court had to be satisfied that that course was, in itself, in the best interests of the child.

1. It was said, and with respect it is a truism, the welfare of a child is a unique and often difficult problem.  The solution does not to lie in some presumption about jurisdiction; the paramount consideration must always be the welfare of the children.

2. The removal of children from their usual country of residence may be a relevant factor in considering welfare principles.  Indeed, the court may take account of public policy considerations.  That is, the court should be highly critical of child abductions but those policy considerations must always be no more than a part of an exercise of what is in the children’s best interest. 

3. The court has to be also conscious of the damage that can be done by allowing a lengthy hearing which has the effect of causing delay as well as exacerbating the child’s absence from a country of birth as well as familial ties.

4. Buckley J in Re L (minors) [1974] 1 WLR 250 at 263 observed that anyone who has had experience in the exercise of “this delicate jurisdiction” knows what complications can result from a child developing roots in new soil, and what conflicts can be occasioned in the child’s own life where such roots grow rapidly.

5. To the extent I can make some findings, I find the husband has delayed instituting proceedings (albeit not for long) in the face of his own letter of demand immediately after the wife left Africa and then delayed further by watching as the children became part of the Australian community.  It is those matters rather than the time element that it is important to consider.

6. In ZP, Brennan and Dawson JJ remarked that the question of whether the resisting parent would return was one central to the child’s future welfare.  A finding about that fact must be made if it is raised.  It has been raised in this case.

7. Deane and Gaudron JJ said a court, conscious of the time element should “first address the question whether the welfare…will be best served” by making a summary order that the other country’s jurisdiction will be in the child’s interest.  If the factual scenario points in that direction, there should be a summary hearing but the difficulty arises here where there are controversial facts (such as the wife’s return to Africa) which cannot be determined summarily.

8. Their Honours went on to say that where cases were not clear-cut they may require a determination of facts going to welfare.  Here, that cannot be done “on the papers”.  The wife’s resistance to returning to Africa is not new; it was apparent before the proceedings were issued and very much so in the shadow of the husband’s assertions that he would issue proceedings in Africa.

9. There are no tactical advantages to either party in either jurisdiction and the question is whether either would be able to present a case.  The wife raises issues of visa access but so too does the husband. 

10. The husband argues that he would be disadvantaged in Australia because the witnesses upon whom he wishes to rely are in Africa but it is unclear what evidence they would give and what issues are contentious.  There are factual disputes here many of which, at face value, appear not to be likely to be corroborated on either side.  The “primary carer” dispute would require witnesses as would a dispute about health and education standards but those two could readily be heard by electronic means.  There is the husband’s capacity to travel to Australia but he has had no visa problems to date so any disadvantage to him has been ameliorated.  The wife’s visa considerations are problematic but there is evidence to enable me to find she could participate at least in any legal proceedings.  In reality therefore, there is no reason to find either party is substantially disadvantaged by access to justice. 

11. The overarching influence here must be the best interests of the children.  My attention was also drawn to Kwon and Lee (2006) FLC 93-287 but that Full Court appeal examined the forum issue, rejecting it as the basis for the determination and then found that the best interest determination through a summary order was an appropriate exercise of discretion by the trial judge. That decision does not assist.

12. There was considerable argument about the High Court’s reference to “a speedy repatriation” but that is directed to avoiding exactly what I find has occurred here.  The children may not have settled in any permanent sense but six months has passed and they have participated in a new life watched on by their father.

The parties’ submissions

1. Senior counsel for the wife nominated 11 what might be described as “issues” for consideration.  He described them as:

   1.Attachment of the children to the wife;

   2.The wife’s primary day to day care with an absent/distant husband;

   3.Issues of family violence directed at the wife and the children including towards the wife in the presence of the children;

   4.The controlling conduct of the husband;

   5.Alcohol and drug misuse;

   6.Lack of engagement with the extended paternal family;

   7.The law enforcement risk;

   8.The heightened risk of delays and corruption in Africa;

   9.The difficulty for the wife in getting a visa to Africa;

   10.The genuineness of the wife’s willingness to return to Africa at all and whether that is rational and sincere; and

   11.The consequence of the return of the children where those issues remain unresolved.

2. Of those 11 issues, I consider that I cannot make findings about 1, 2, 5, 8 and 9 but in any event, the critical ones are 10 and 11.

3. Against those, counsel for the husband submitted:

   1.The evidence that the husband wanted to present would not be available in Australia;

   2.The African court is better placed to determine the welfare of the children because of all of the evidence there;

   3.Insofar as a speedy determination is a relative term, the husband did all that was within his power to get that speedy hearing;

   4.There is no suggestion that the husband has been uncooperative with the wife about coming to Australia and continuing the relationship with the children;

   5.The wife had (unreasonably) wanted the time between the husband and the children in Australia supervised and that continued until January 2019;

   6.The wife’s position of indicating that she was not going back to Africa was “patently not genuine” and “bluntly manipulative”.

4. In respect of the last of those issues, counsel for the husband submitted that “of course she will go back”. She submitted that if the wife said she would not go back, she asked rhetorically, what did it say about the wife’s parenting? She submitted that the approach of the wife was part of the attitude to parenting referred to in s 60CC of the Act and the African court was best able to determine that issue.

Conclusion

1. The conflict between a speedy hearing in a summary sense and an adequate inquiry into welfare general is a fundamental issue.  That inquiry into the welfare gives the court an opportunity to understand from an evidentiary perspective whether there would be severe impacts upon the children by the absence of their mother.  If a return is ordered and she did return to Africa, how will these children live having regard to the uncertainties about such things as a visa, the yet-to-be issued proceedings in Africa, and their ability to adjust to what is likely to be a different life to that which they have had before?  The fact that the children have settled, even on a temporary basis, in Australia and have set down roots is important and the connection between their lifestyle here and the roles that each of the parents play is an issue dependent upon the finding of a court as to whether or not the mother is reasonable and genuine about not returning to Africa.  There are allegations of violence including towards the children all of which are contested.  To simply ignore them and say they could be dealt with in Africa ignores the fact that the wife expresses concerns that there is a welfare risk to the children that needs to be assessed here.

2. Unlike other cases, this is also not a case of simple unilateral action by the wife because, whilst the husband may not have anticipated it in August 2018, looking at all of the background over the previous two or so years, the move was not entirely unpredictable.  It may not have been appropriate to do it unilaterally but that is now the reality.  Whether it was based on the fear as expressed by the wife is a matter that needs to be tested.  That too is an issue about which findings cannot be made now and what, if any, effects there have been and will be on the welfare of the children if they have been exposed to family violence. 

3. In essence therefore there are a number of issues that need investigation and in respect of controversial issues, the evidence needs to be tested.  In my view therefore it is not appropriate or in the best interests of these children that there simply be a summary hearing in which the children are returned to Africa for the issue to be fully canvassed.

Orders

1. The parties agreed that there were two options at the end of the hearing.  The second of the options related to a trial and they asked that if I made that decision, orders be made.  I now make those orders.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 March 2019.

Associate: 

Date:  5 March 2019