Obeid and Saab

[2018] FCCA 2198

FEDERAL CIRCUIT COURT OF AUSTRALIA

OBEID & SAAB [2018] FCCA 2198

Catchwords:
FAMILY LAW – Parenting – competing live with applications – allegations of family violence – child to live with mother and spend significant and substantial time with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 63C, 65DAA

Cases cited:

Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR OBEID

Respondent: MS SAAB

File Number: PAC 4792 of 2016

Judgment of: Judge Obradovic

Hearing dates: 7, 8 and 9 March 2018

Date of Last Submission: 9 March 2018

Delivered at: Parramatta

Delivered on: 20 August 2018

REPRESENTATION

Appearing for the Applicant:	In person
Appearing for the Respondent:	Ms Abdelraheem

Solicitors for the Respondent: Hills Legal Group

ORDERS

1. That the parents have equal shared parental responsibility for the child [X] born on 2013.

2. That the child live with the mother.

3. That the child spend time with the father as follows:

   (a)Commencing on 22 August 2018 each alternate Wednesday from after school to before school on Monday;

   (b)From 3pm on 2 January 2019 to 9am on 21 January 2019;

   (c)Commencing at the start of the 2019 school year for one half of each school holiday period as agreed between the parents and failing agreement for the first half of each school holiday period in even numbered years and the second half in odd numbered years, during which period the time pursuant to order 3(a) shall be suspended;

   (d)On the following occasions if the child is not already in the father’s care:

   (i)From 5pm on Christmas Day until 5pm on Boxing Day;

   (ii)From 10am to 5pm on New Year’s Day; and

   (iii)From 10am until 5pm on Father’s Day.

   (e)For a period of three hours as agreed, or failing agreement from 3pm to 7pm on the following occasions, if the child is not already in the father’s care:

   (i)Eid-ul-Fitr as celebrated by the community in Sydney;

   (ii)Eid-ul-Adha as celebrated by the community in Sydney;

   (iii)New Year celebrations in Sydney;

   (iv)Father’s birthday; and

   (v)On the child’s birthday.

   (f)At such other times as agreed between the parties in writing.

4. Changeover shall occur at the child’s school if on a school day. All other changeovers shall occur by the mother delivering the child to the father’s residence at the commencement of the child’s time with the father and the father shall return the child to the mother’s residence at the conclusion of the child’s time with the father, unless otherwise agreed in writing between the parties.

5. The parties are at liberty to contact the child by telephone, Skype, Viber, WhatsApp and/or FaceTime between 7pm and 7.30pm whenever the child is spending time with the other parent, on the device of the attending parent or a home land line as practicable.

6. Each party is entitled to attend all events involving the child including but not limited to:

   (a)Sporting fixtures;

   (b)Extra-curricular activities that allow for parental attendance;

   (c)School /day care functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher meetings and interviews, canteen duties and social functions; and

   (d)The parent who has the child in their care on the day of such activities will be responsible for their care at the event, as well as their transportation to and from the event.

7. Each parent shall authorise and do all things, sign all documents and give all consent necessary to enable any relevant health or educational professional and any school/daycare attended by the child to provide to each parent copies of reports and any other information or documentation relevant to the child’s health and education and seek both parent’s permission and consent for decisions regarding the child.

8. Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the child, such notice is to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions.

9. Each of the parties is restrained from denigrating, criticising or otherwise speaking negatively about the other parent or members of the other parent’s family in the presence or hearing of the child.

10. Each of Mr Obeid and Ms Saab and their servants and agents be and are restrained from removing or attempting to remove or causing or     permitting the removal of [X] born 2013 (male) from the Commonwealth of Australia.

11. [X] born 2013 be and is hereby restrained from leaving the Commonwealth of Australia.

12. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child or children on the Watch List in force at all points     of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years or pending further order.

13. Upon expiration of the period referred to in Order 12 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of    the child or children’s names from the Watch List. 

14. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Obeid & Saab is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4792 of 2016

MR OBEID

Applicant

And

MS SAAB

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings initiated by the Applicant father on 11 October 2016 in relation to the parties’ only child [X] born on 2013.

2. The father seeks orders contained in his Case Outline filed with the Court on 8 March 2018 whereby he seeks inter alia that the father have sole parental responsibility with respect to the child’s education, moral and cultural upbringing, mental and physical health, that the child live with the mother and spend substantial and significant time with the father until the child commences school and in the reverse when the child commences school, that is that the child live with the father and spend substantial and significant time with the mother and that the parties are at liberty to travel outside of the Commonwealth of Australia with the child upon certain conditions being met.

3. The mother seeks orders as contained in her Case Outline document filed with the Court on 6 March 2018 whereby she seeks inter alia that the parties have shared parental responsibility for the child, that the child live with the mother and spend substantial and significant time with the father and that the child be placed on the airport watch list until he attains the age of 18 years.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

Documents relied on

1. The father relied on the following documents at final hearing:

   a)Amended Initiating Application filed 29 September 2017;

   b)Affidavit of Mr Obeid affirmed and filed 29 September 2017; and

   c)Notice of Risk filed 11 October 2016.

2. The mother relied on the following documents at final hearing:

   a)Amended Response filed 29 September 2017; and

   b)Affidavit of Ms Saab sworn 27 September 2017 and filed 29 September 2017.

3. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 – email from mother’s solicitor to father dated 30 January 2018 and viber messages dated 24 December 2017 to 9 January 2018; and

   b)Exhibit 2 – Paragraphs 28 – 36 of the mother’s Affidavit filed 21 April 2017.

Brief Chronology

1. The father was born on 1977 in (country omitted).

2. The mother was born on 1979 in (country omitted).

3. The parties commenced their romantic relationship in 2012.  At the time, the parties were working for the same employer in (country omitted). The father, who is a (occupation omitted), and the mother, who is an (occupation omitted), was a specialist in the (omitted) division of the same company.

4. The mother has a child from a previous relationship, [A] (“[A]”) who was born on 2005.  Since the mother and [A]’s father separated in around 2012, [A] has remained living with the mother; although he had been spending time with his father prior to the mother’s move to Australia. 

5. The mother and [A] moved in with the father on 2013.  At this time the mother was already pregnant with the parties’ only child, [X] (“[X]”), who she gave birth to on 2013.

6. Prior to the parties commencing to live together, it was only the paternal grandfather from the mother’s extended family who met and was introduced to the father.  The maternal grandmother and other members of the extended maternal family were not introduced to the father.  The father was not permitted to enter nor was he ever invited into the maternal grandparents’ home.

7. The parties have differing accounts of the care that they each provided to the child after [X] was born. The mother asserts that the father had very little involvement with the child from his birth and that she was his primary carer.  The father asserts that he was very involved in [X]’s care, including changing his nappy, nursing him, playing with him, feeding him and dressing him. 

8. When the mother returned to work from maternity leave, which was approximately five to seven months after the child was born, a nanny assisted with the care of the child.  The father also had a live-in housekeeper, who assisted with, or was responsible for, various domestic chores.[7]

   [7] The mother's evidence in relation to this domestic assistance suggests that the domestic assistance was not for her and that she was still expected to do household chores despite the live-in housekeeper.  For reasons which are explained elsewhere and because of the Court's preference for the evidence of the father over that of the mother where the two are in conflict, the Court does not accept the mother's evidence that the live-in housekeeper did not provide assistance to the mother with domestic chores.

9. The parties first separated in late December 2013 with the mother and children moving from the father’s home and into the maternal aunt’s home.  The mother returned with the children to the father’s home about a month later.

10. The mother and children left the family home again in July 2014 and for a period of five months lived with members of the extended maternal family.  In November 2014, the mother again returned with the children to the father’s home where they remained living together until February 2015, when the mother surreptitiously left (country omitted) and moved to Australia.

11. The mother says she left the former matrimonial home a number of times due to family violence and threats by the father.  The Court does not accept the mother’s evidence in relation to the allegations of violence for reasons which are explained further below.

12. During the periods of time that the mother and the children were not living in the former matrimonial home with the father in (country omitted), the parties had been able to agree to the father spending some time with [X].  That time was in essence supervised by the mother, and included outings to the park and the father spending brief periods of time with the child in front of the apartment building where the mother was living with the children.

13. On 13 February 2015, the mother and the children left the former matrimonial home while the father was away visiting his family in another state.  The mother almost immediately relocated to Australia, arriving on 2015. It was only upon arrival that she sent the father (and [A]’s father) an email advising that she had relocated with the children to Australia.  Neither the father nor [A]’s father were aware of the mother’s plans to move to Australia when she did and in the manner that she did.

14. In June 2015 and December 2015, the father visited Australia and spent time with [X]. He also continued to have regular communication with the child via Skype and WhatsApp.

15. The father moved to Australia on 11 June 2016 and commenced proceedings in the Federal Circuit Court for parenting orders on 11 October 2016.

Aspects of the mother’s evidence

1. The mother in her evidence in chief refers to the father as her “former de-facto partner”. She further deposes that the parties “were never legally or religiously married in (country omitted) or in any other country.” She was cross-examined about this evidence.

2. The mother confirmed that on 2013 the father’s parents gave their blessings to the parties, which according to her understanding of Sharia law, meant that the parties were husband and wife. The parties according to the wife have a “nikah nama” which the wife confirmed in cross-examination is a marriage certificate under Sharia law.

3. Annexed to the mother’s affidavit are two statements[8] she made to the police dated 2014 and 2014.  Those statements read “I am married, according to Islamic Sharia, to the accused (1) Mr Obeid…”

   [8] These are referred to in more detail further below

4. The mother did not take any opportunity of explaining to the Court why there was this discrepancy in her evidence, that is, why she asserted in her evidence in chief that the parties were never religiously married, when it is clear that she considered herself and the father to be husband and wife under Islamic Sharia law.

Allegations of Violence

1. The mother’s evidence in chief reads as follows:

   51. On 2014, Mr Obeid was away visiting his family at his home state.  He called me and said “when I get back you better listen to everything I say or else I will make your life a living hell”

   52. On 2014, I returned to the family home with my father from protection, but Mr Obeid refused entry to the property.  Mr Obeid came to the passenger side of the car where I was sitting with so hide asleep on my lap, and shouted “you are not allowed in my home anymore.”  He then shouted to the security guards near the gate “throw them all out, the children as well.”

   53. I went to the police station that night with my father to report the incident.

   …

   55. After this incident, Mr Obeid called my father and said “I’m going to take steps to feed you both prison food. Ms Saab will be losing her job soon.  She won’t be able to take care of the children anymore.  If she had listened to me, none of this would have happened.  It’s all her fault.”

2. The statement which the mother made to the police referred to above, was annexed to the mother’s affidavit.  That statement reads as follows:

   I am married, according to Islamic Sharia Law, to the accused (1) Mr Obeid… My relations with the accused was good.  Recently, the accused suddenly, using trivial incidents and without any rhyme or reason, began to behave badly with me and on 4/5/14, at about 10:30 PM, evicted me, with just the clothing on my body, and our son from the house.  Finding no alternative, I went to my father’s house with my son.  Since then, the accused has been calling me from his mobile number and threatening variously to harm me as well as my father and mother.  The accused may inflict serious harm on me.  As a result I wish to record a report (general diary) for the future.

3. When asked questions in cross-examination, the mother said that she could not recall the exact date, but agreed that the father was with his family on 2014. She said that on the day of this incident, she had been out with the children and her father, that she had been to see her mother, and that upon return to the family home she was not permitted entry. She said the housekeeper was there. The mother said in her oral evidence that she had never been given a key to the father’s home, then she changed her evidence that she had had a key but then it was ‘taken away’ from her, and that she was in the parking inside the gate when she was refused entry. She said she was driving the vehicle that she and the children were in.

4. It is clear that there are significant inconsistencies between the matters which the mother deposed to in her affidavit, the statement which she annexed to that affidavit (as corroborating evidence of the assertions she made in the affidavit), and her evidence in cross-examination:

   a)On the one hand the mother asserts that she asked her father to go with her to the family home, where she was refused entry on 2014 and on the other hand the mother asserts that she was evicted from the parties’ home on 2014. In her oral evidence the mother was not sure about the date of the alleged incident, which seemed to consist of her not being able to come into the home because she did not have a key;

   b)The mother did not suggest that they were different or separate incidents and that she only reported the one incident;

   c)On one version she was in the passenger side with the child asleep on her lap, on the other version she was driving the vehicle; and

   d)On one version she asked her father to accompany her home because of the threats the father had made the previous day, yet this is not mentioned in her oral evidence which suggests that she was simply coming home after a day out with her extended family.

1. The mother did not suggest that her report to the police was incorrect nor that her affidavit was incorrect, and her evidence in cross-examination did not assist the Court in clarifying the issues; indeed she was not able to account for the differences in the evidence. The mother confirmed that she had read the statement and the translation of the statement which were annexed to the affidavit before she signed the affidavit but that she was “more concerned with the content”.

2. The father’s evidence is that on 2014, when he returned home after spending the weekend visiting his father, the mother and the children were not home. The mother did not answer the father’s telephone call until a few days later. He did not know immediately where the mother and the children were, but later learnt that the mother was staying with her parents.

3. According to the father, the mother stayed with her parents for a period of about three weeks and during that time, the father travelled to the maternal grandparents’ home to spend time with [X]. He was not permitted to enter their home and at times, the mother did not make [X] available to spend time with the father.

4. The mother’s allegation that the father refused the mother entry into his home on or about 2014 were not put to the father in cross-examination. Rather it was put to the father that on 2014 he refused the mother entry and that the parties separated. The father denied that he did this, or that the parties separated. His evidence was that the mother would often travel to her parents’ home and stay there.

5. The mother alleges a further incident of violence said to have occurred on 27 June 2014.  The alleged incident is on the back of the father apparently saying to the mother after she found out that her mother was diagnosed with stage IV bladder cancer, that he would lock up the paternal grandmother behind bars in her final days.

6. The mother gives evidence the father called her a “bitch” and “whore” following a visit to see her family on 27 June and told her “I have never hit a woman before, I don’t want to, but you are compelling me to”.

7. The mother in her evidence in chief asserts that following these threats by the father on 27 June 2014, she was afraid for her life and attended the police station again with her father on 5 July 2014 to report the incident.  Although she says that no legal action was taken by the authorities she is silent as to whether or not she asked the police to take any action against the father.

8. The statement which the mother made to the police is again annexed to her affidavit, it reads as follows:

   I am married, according to Islamic Sharia, to the accused (1) Mr Obeid… My relations with the accused was good.  Recently, the accused suddenly, using trivial incidents and without any rhyme or reason, began to behaved badly with me.  The accused frequently used abusive language towards me.  For this reason, I lodged a report with police station as per GD No., dated –2014.  Following these the accused reconciled with me and for some time behave normally towards me.  Suddenly, on 27/6/2014, at about 01:00 o’clock, the accused without any reason, using abusive language asked me to leave the house and threatened to hit me.  Besides this the accused is hurling threats to harm me and my son.  Presently I am living in fear.

   Therefore, I request you to record the above matter in the general diary. 

9. Once again it is clear that there are significant inconsistencies between the mother’s evidence in chief and the statement which she annexed to her affidavit (as corroborating evidence of the assertions she made in the affidavit).  For example:

   a)The mother alleges in her affidavit that in June 2014 the father had made threats to lock up the maternal grandmother and that she was so afraid that she did not go to work or send [A] to school.  To the police she makes a statement that the incident on 2014 was an incident out of the blue and that between 2014 and 2014 the father had behaved normally towards her;

   b)In her affidavit the mother alleges that on 27 June the father approached with a raised fist which he waived in her face, and threatened to hit her; whereas to the police she says that the father in addition to using abusive language and threatening to hit her also asked her to leave the house;

   c)The mother says in her affidavit she attended the police station on 5 July and that it was thereafter that she left the family home.  The mother does not suggest in her affidavit that she left the family home because the father asked to do so a week prior;

   d)To the police the mother stated that her relations with the husband were “good”.  At its highest it seems that the representation to the police was that the parties’ relationship was good until “recently”.  When asked about this in cross-examination the mother said that this was a reference to the past, namely a reference to the beginning of the parties’ relationship.  The difficulty with this evidence is that the mother’s affidavit alleges not only coercive and controlling behaviour throughout the relationship, but that from the outset of the relationship she noticed that the father was “very controlling” and “wanted to assert his power and establish his domain in all affairs.”

   e)One further difficulty with the mother’s evidence is that in her statement to the police she asserts that following the report she made on 2014, the father’s behaviour towards her improved whereas this does not correspond with the evidence contained in her affidavit, where she alleges threats to the paternal grandfather following her report to the police on 7 May 2014.

10. The mother does not say in her evidence that the statements she made to the police are somehow incorrect nor did she satisfactorily explain the discrepancies.

11. The father was asked in cross-examination whether on 27 June 2014 at about 1pm he used abusive language and threatened to hit the mother. The father denied this. It was also put to him that he was “hurling” threats to harm her and the child, which also the father did not agree with.

12. The mother also as noted earlier, makes allegations of coercive and controlling behaviour against the father.  She says that the father “used his position of influence and power in society to blackmail” her and cause emotional distress. She says that he isolated her from her family and friends and that his family likewise were controlling of her. The mother says that the father’s “emotional and psychological bullying was relentless”.  

13. Despite her assertion that the father used his position of influence and power in society to blackmail her and cause emotional distress, the mother did not put before the Court any evidence of such use of position or power.  Although not of significant weight, it is relevant that the mother’s father was a consultant for the government and that her siblings are all university educated and hold positions of respected professionals.  Indeed, there is no suggestion by the mother that she was at any point in time prevented from making any complaints to the police about the father’s alleged conduct, and indeed she did do so with the assistance of her father.  Therefore the assertion that the father isolated her from her family and that he exercised his power and control over her is not made out on the evidence.

14. The mother’s evidence is difficult to accept for other reasons. At each single separation of the parties, the mother returned to the paternal grandparents’ home or to the home of her extended family.  Her evidence did not reveal any attempts by the father to stop the mother from leaving or preventing her from doing so. Her evidence did not reveal the father at any point in time trying to coerce the mother into coming back to the family home at times when the parties had arranged for the father to spend some time with the child, or for that matter that the father made any threats towards her during the periods of time she was living away from his home.

15. In November 2014 the mother says she was persuaded again by the father to return to the family home with the children with a view to negotiating the mother’s move to Australia with the children. It is agreed between the parties that they had been separated for about five months and that the mother moved back into the father’s home with the children in November 2014. The parties are not however in agreement about the reasons for that. The father was not cross-examined about the matter.

16. The Court does not find that the mother was in any way coerced or unfairly pressured into returning to the father’s home on the premise that he would then agree for her and the child to relocate to Australia. It is much complicated than that.

17. The mother says that in January 2015 the father’s violence towards her heightened. He told her that arranging for her to be killed would be an easy task and in an incident a few days later the father hit the mother in the head with a closed fist and grabbed her by the throat whilst holding the child causing her to “blank for a few seconds and became numb”. The mother does not say that she received any bruises or other injuries as a result of a punch to the head.

18. The father denied that he made a threat to the mother on 25 January 2015 to kill her when that specific allegation was put to him in cross-examination. The father was not cross-examined about the allegation that he punched the mother in the head or that he grabbed her by the throat.

19. The mother did not report the allegations with respect to the January incidents to the police. In circumstances where much more trivial matters were reported to the police earlier in 2014, and the mother had been living away from the family home with the children for a period of five months on her evidence, it is difficult to understand why such a serious assault was not reported. The mother explained that it was because the Police did not take any action as a result of her previous complaints.  The Court does not accept the mother’s evidence in this regard.

20. The evidence is that the mother returned to full time work some months after [X]’s birth. She does not suggest that she was in any way financially controlled by the father at any point in time.

21. She left the father’s home with the children on 13 February 2015, while the father was away visiting his family in another state. The mother moved to Australia with the children on 2015.

22. On a careful consideration of the evidence, the Court does not find that the mother has established to the requisite standard the allegations of violence she makes against the father.

The mother’s move to Australia and Amicable Agreement

1. Both of the parents have previously lived and studied in countries other than (country omitted). The mother obtained her education in the (country omitted). The father completed a (qualifications omitted) in Australia.. The father lived in Australia for a number of years prior the parties’ relationship and became an Australian resident in 2006. The mother is also a permanent resident of Australia.

2. In early 2014, the parties started having discussions about the mother’s desire to study in Australia. At the time of these initial discussions, the father agreed to the mother travelling with their child to Australia for the purpose of completing her (qualifications omitted), but required that he be permitted to visit and spend time with the child, and that the child be permitted to travel to (country omitted) and spend time with the father. The parties agreed to this arrangement.

3. In January 2014, the mother applied for [X] to be granted permanent residence in Australia. She was the child’s sponsor on the application and the father gave his consent to the application being made. He was aware of and participated in the application process. The mother had at that time indicated to the father that she was intending to do a (qualifications omitted) in Australia and that it was a temporary move with the children for the purpose of furthering her education. The mother did not at that time or at any other time thereafter, tell the father specifically when she was planning to travel to Australia, that is, there was no specific time frame for the proposed study.

4. On 2014[9] when the father returned to the family home from visiting his family, he saw that neither the mother nor the children were at home. He then noticed that [X]’s passport and birth certificate were not in their usual place, and reported the matter to the police. At around the same time, the father notified the Australian High Commission in (country omitted) of his now objection to the child being granted Australian residence.

   [9] See paragraph 41 above

5. When the parties reconciled in late 2014, they entered into a written agreement in respect of the mother and the child travelling to Australia for the purpose of the mother completing a (qualifications omitted). This written agreement is known by the parties as the “Amicable Agreement” and was part of the evidence.

6. The mother states that the Amicable Agreement was drafted by a barrister friend of the father[10], that she had no legal representation and that she felt under duress to sign. She says further that “coming to Australia was the only realistic escape … from Mr Obeid’s controlling behaviours and domestic violence”. She does not explain this any further. There was no suggestion by her that the father was in any way restricted from travelling to Australia and indeed she states that the agreement was the “the equivalent of a parenting plan”.

   [10] The father says he drafted it and it was signed in front of the barrister

7. The mother’s position that the Amicable Agreement had the force of a parenting plan stands in stark contrast to her assertion that she signed the document under duress, when one considers the basic principle that a parenting plan must be freely entered into between the parties.[11]  Indeed no submissions were made in the mother’s case about the Amicable Agreement and what weight, if any, the Court should give to it.

   [11] See generally section 63C Family Law Act 1975 (Cth)

8. It is not clear whether the Amicable Agreement was signed by the mother before or after she moved back into the father’s home with the children. However, it was only after the Amicable Agreement was signed that the father withdrew his objection to the application for the child to be granted Australian residence.

9. The father says that he agreed for the mother to return to Australia to complete her (qualifications omitted) providing he was able to communicate with the child and visit the child. The father says that he gave his consent for the mother to apply for the child’s visa on the condition that the child be returned to live with the father after four years of the child living with the mother in Australia. This is reflected in the terms of the Amicable Agreement.

10. On 20 January 2015, the mother was notified by letter from the High Commission that the child was granted the visa. The mother did not tell the father of the receipt or content of the letter. The mother did not advise the father that the application for the child to be granted permanent residence was successful. The father was not in any way separately notified by the High Commission of the outcome of the application.

11. The mother says that prior to her “escape” to Australia she discovered that the father was “in the process of obtaining a second passport” for the child and that she did not know for what purpose this was. The mother did not ask the father anything about this at the time.

12. On 2015 the mother left the family home with both ]X] and [A]. On 2015, the mother arrived in Australia with the children.

13. The mother says that she provided the father with her contact number “immediately” upon her arrival in Australia with the child however did not disclose her residential address due to safety concerns she held.

14. Not only did the mother not tell the father of her intended move to Australia or advise him of her residential address, she did not tell [A]’s father either.

15. The mother’s evidence is that [A]’s father knew that she was intending to move at some point in time and that the reason she did not tell him is that she did not want the father to know. It was also the mother’s evidence that [A] was not to tell his father about the move prior to the mother and the children relocating to Australia. Prior to February 2015 [A] enjoyed a strong and loving relationship with his father. Since February 2015, [A] has not spent any time with his father.

16. The mother has not yet commenced a (studies omitted) in Australia. Indeed since her move to Australia in 2015, she has not applied for entry into any Australian University for enrolment into a (studies omitted).

17. In light of the other findings made and all of the evidence in the proceedings, the Court does not find established on the evidence that the mother was fleeing domestic violence by her move to Australia or that she signed the Amicable Agreement under duress.

Parents’ capacity to communicate, attitude to parenthood, ability to co-parent and other relevant considerations

1. Despite the mother’s assertion that she did not provide the father with her residential address upon her move to Australia in 2015 for safety concerns, when the father travelled to Australia in 2015 for the purpose of spending time with [X], he spent a week in the mother’s household. The mother does not report any incidents during that period of time.

2. When the father travelled to Australia for the second time in 2016, he was able to spend time with [X] in accordance with agreements reached between him and the mother.

3. The father commenced these proceedings on 11 October 2016.

4. At one stage in these proceedings, the mother alleged that the child complained to her that the father had touched his penis, and that another person by the name of “Ms D” had also touched him.  The child complained that it “hurt”, and upon the mother asking him if he hurt anywhere else, the child pointed to his right ear.  This conversation is said to have occurred between the mother and the child on 24 January 2017. The mother took the child to the family general practitioner who examined the child and gave the mother a referral for Hospital. The GP said to the mother that there was a bit of redness around the child’s anus but that this could be for a number of reasons.

5. Exhibit 2, being paragraphs of the mother’s affidavit filed 21 April 2017, set out the mother’s then concerns and her reasons for not raising the issue with the father at the time. It was after the father started to agitate spending time with [X] overnight, that the mother’s concerns about the issue resurfaced and it was only after the direction hearing on 3 April 2017 that the mother decided to take the child to Hospital to see a paediatrician.

6. The hospital staff referred the mother to the Department of Family and Community Services, who according to the mother indicated they would not be investigating the matter.

7. The child had been spending time with the father in the interim period.

8. It was after she spoke to the Department, that the mother felt her concerns were addressed enough to be put aside and she entered into negotiations with the father for the child to commence spending overnight time with the father. 

9. At final hearing, the mother did not make any submissions in respect of the child being at an unacceptable risk of harm as a result of what the child had disclosed to her in January 2017. The orders which she sought were for the child to spend significant and substantial time with the father.

10. Consent orders for the child to spend time with the father were made on 12 December 2016 and 26 April 2017. Between the last consent orders and the final hearing, the parties had between themselves made slightly different arrangements for the child to spend time with the father. Just prior to final hearing, the child was spending regular time with the father during each week, including overnight time.

1. The father says that he has encountered difficulties communicating with the mother about the child since her arrival in Australia. He says that he has sent her numerous emails and text messages regarding issues about the child such as what food he enjoys eating, his clothing needs and size, nappy requirements and general updates about the child however the mother does not reply. He says that communicating with the mother is very difficult because she says that he is harassing her.

2. The father gives evidence in his Affidavit about telling the mother to ensure the chid does not watch shows on TV or movies with any reference to guns or violence, he has “tried to address feeding [X] junk food and sugary snacks” and has forwarded to her “a number of emails… containing research findings about the effect of sugar on children’s immune systems”. Again the mother did not reply.

3. The father says that he has concerns that the child “remains without food from 7.30pm” and that he eats breakfast at day-care instead of home, he has concerns about the child being dirty and in unclean clothes and that he has long and dirty nails and he also has concerns “about the shabby and congested space at the daycare” that the child attends.

4. The father says he is concerned that the mother will continue to obstruct any chance of the child and father having a meaningful relationship.

5. The father has a number of genuine concerns in relation to the child’s care, which he has raised with the mother and which the mother conceded in cross-examination she had not responded to in an appropriate manner. For example, the father has significant concerns about the level of care the child is provided at the child care which the mother has enrolled him in, and has provided alternative child care to the mother which she has not responded to. She conceded in cross-examination that she is willing to change the child’s child care.

6. The issue however, is the mother’s lack of co-operation with the father in respect of these important issues. The mother’s evidence is that she is frightened of the father, that he is controlling and abusive and that this is the reason why she is not co-operating with the father. The Court does not find this established on the evidence.

7. While the father does at times seek to micro-manage the child’s parenting, it is the Court’s finding that he does so on a genuine basis. He has moved to a new country and has instituted proceedings in order to be able to have a relationship with this child.

8. The child is now four years old. He has been living with this mother for the entirety of his young life. He has a sibling in his mother’s household. His primary attachment is no doubt to his mother, and on all accounts it appears to be a secure attachment. There is no evidence to suggest that he does not also have a strong and loving attachment to his father.  

9. The father submits to the Court that with the current interim arrangement, the time which he spends with the child is in fact more face to face time than the mother spends with the child. It would be unwise to apply any strict mathematical formula to ascertain the quantity of time the child is spending with each of his parents, and even more unwise to equate quantity with quality.

10. The Court accepts the evidence of the father that he has no intention of returning to (country omitted). He has made Australia his home and intends to stay here.

11. The child has to date had regular time with the father, albeit this has not progressed as quickly as possible to significant and substantial time as perhaps it could have.  

12. The child will be starting school in 2019. It is important that he is settled into a routine within the two different households where he will be living and spending time, such that there is as little disruption to him as possible come the start of the 2019 school year. At present, he still attends day-care, and both of his parents work, albeit with slightly differing flexibilities in their work arrangements. The Court was not taken to any specific evidence which would contra-indicate the child spending significant and substantial time with both of his parents.

13. The father seeks orders for the child to live with him and the mother seeks orders for the child to live with her. Both parents appear to be loving parents. They each care for the child in the best manner possible for them, particularly given their other commitments. They are both hard-working professionals who want to offer their child the best opportunities available.

14. While the father’s arguments and evidence that the child would transition from the mother’s home to his home without any difficulties are persuasive, this is but one of the matters which the Court needs to consider in its determination of what is in the child’s best interest. It was strongly argued by the father that the arrangements which the parents intended to come into effect by the signing of the Amicable Agreement should now come into place, the Court is not bound by the terms of that agreement or the parties’ intention at the time (if they were found to be so established).

15. The Court finds that it is in the child’s best interest to live with the mother and spend significant and substantial time with the father, for all of the reasons which have been outlined earlier.

Parental Responsibility

1. The father seeks orders for sole parental responsibility in respect of certain matters. The mother seeks orders for sole parental responsibility overall, albeit she is not opposed to an order for equal shared parental responsibility.

2. One of the main concerns for the father was the agreement which the parents signed prior to the mother moving to Australia with the child. The father’s position is that the mother has been underhanded and deceitful, not only in signing the agreement and then absconding, but also in making the allegations of family violence and the suggestion that the father has inappropriately touched the child. The father has concerns that the mother will not teach the child to be honest and trustworthy. This, the father explains, is the basis for his application for sole parental responsibility in respect of moral and cultural issues. The father’s application for sole parental responsibility in respect of the child’s education is explained by the lack of co-operation he says he has received regarding the child’s day-care.

3. In parenting proceedings there exists a rebuttable presumption of equal shared parental responsibility. The Court is not persuaded by either of the parties’ submissions that the presumption has been rebutted.

4. In respect of parental responsibility, while there is some reluctance on the mother to co-operate, the Court finds that she does have the capacity to do so, it is more that she has not demonstrated a willingness to do so to date. However, this does not mean that with the security of parenting orders and certainty as to what the parenting arrangements for the child will be, that she will not do so in the future. The Court finds that the mother will comply with Court orders in that regard.

5. As such, an order for the parents to have equal shared parental responsibility will be made. This will ensure that both parents have meaningful input into the child’s future, an input which the child will benefit from.

6. The making of an order for equal shared parental responsibility triggers the operation of s65DAA. As such, the Court is obliged to consider making orders for equal time or otherwise orders for significant and substantial time.

7. The evidence does not support an order for equal time. The parties have not demonstrated their ability to co-parent to a level which would support an order for equal time.

8. In respect of an order for significant and substantial time, as already indicated, the Court finds that such an order is in the child’s best interest and reasonably practicable.

Airport Watch List Order

1. The father seeks orders permitting the parties to be able to travel outside of Australia with the child. The mother opposes this application and indeed seeks for the child’s name to be placed on the Airport Watch List.

2. The father has no immediate plans to travel. The Court has already accepted that he intends to remain living in Australia.

3. The mother has already relocated with the child from (country omitted) to Australia without the father’s knowledge. There is a risk that she may decide to try something similar in the future, given her international ties and time spent abroad.

4. It is therefore as a mitigation of such risk that the child’s name be placed on the Airport Watch List.

5. If and when the father’s proposal for international travel with the child crystallises, if there is no agreement, an appropriate application can then be made.

6. It may well be that the mother will want to travel with the child in the future. If there is no agreement, she too can then make an appropriate application.

7. Until any travel plans are known with particularity, the application for international travel in the face of the mother’s opposition and lack of evidence will not be granted at present.

Conclusion

1. For all of these reasons, orders as set out at the forefront of these Reasons will be made.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 20 August 2018