RANDLE & RANDLE

FAMILY COURT OF AUSTRALIA

RANDLE & RANDLE

[2012] FamCA 59

FAMILY LAW - CHILDREN – Where unauthorised removal of the child from the United Arab Emirates to Australia – Where a prior interim decision that a hearing of parenting issues in Australia is in the child’s best interests

FAMILY LAW - CHILDREN – Best Interests – Where significant credit findings against the Father – Where best interests considerations weigh heavily in favour of returning the child to the United Arab Emirates and his mother’s care

Family Law Act 1975 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Heath & Hemming (No. 2) [2011] FamCA 689
MRR v GR (2010) 240 CLR 461
Sigley & Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238

APPLICANT:

Ms Randle

RESPONDENT:

Mr Randle

INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

FILE NUMBER:

BRC

11866

2010

DATE DELIVERED:

20 February 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

28 November 2011 - 2 December 2011

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms J McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

Orders

Parental Responsibility

Subject to Order (2), the Mother shall have sole parental responsibility for the child, S, born … April 2003, in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) provided that each parent shall have, during all such time that S is in their respective care, sole parental responsibility in respect of issues that are not “major long-term issues”.
In respect of any “major long-term issue”, as defined, the Mother shall give the Father written notice of the issue to be determined and:
(a)The Father shall be at liberty to provide his views or recommendations in writing to the Mother; and
(b)The Mother shall act reasonably in considering any views or recommendations provided by the Father before making any decision;
(c)The Mother shall advise the Father in writing of any decision made with respect to any “major long-term issue” as defined.

Co-parenting Arrangements

S shall live with the Mother.
The Mother shall be permitted to have S reside with her in the United Arab Emirates (“UAE”).
S shall spend time with and communicate with the Father as follows:
(a)Commencing Monday 2 April 2012, in any week when the Father is visiting the UAE and can facilitate such visits, then from after school Thursday to before school Sunday in each such week;
(b)For one half of the summer holidays in the UAE in July/August for the first half in 2012 and each alternate year thereafter, and the second half in 2013 and each alternate year thereafter, with the Father to be permitted to have S travel to Australia for such holiday periods;
(c)For the UAE school holiday periods in March and commencing in December in 2013 and each alternate year thereafter;
(d)For the purpose of the holiday periods referred to, the Father shall be permitted to have S travel to Australia for such holidays provided that:
(i)The Father provides not less than thirty (30) days’ written notice to the Mother of his intention to have S travel to Australia; and
(ii)The Father is solely responsible for S’s travel costs, including any costs necessarily incurred to have an accompanying adult travel with S;
(e)Commencing 2 April 2012, the Father shall communicate with S via web-based communication on a maximum of three (3) occasions per week to be nominated by the Father;
For the purpose of S’s changeover from living with the Father to living with the Mother and for the purposes of giving effect to Orders (3) and (4) above:
(a)Pending S’s return to the UAE, the Father is restrained and an injunction is hereby issued restraining him from removing or attempting to remove S from the Commonwealth of Australia;
(b)Pending the return of S to the UAE, the Father is restrained and an injunction is hereby issued restraining him from changing the residence of S from the premises where the Father and S are currently residing, namely … P , Town H;
(c)Subject to sub-paragraph (d) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police, retain the names of the respondent Father, Mr Randle (a male), born … August 1952, and the said child, S (a male), born … April 2003, on the All Ports Watch Alert System at all international departure points in Australia;
(d)The name of the said child, S, born … April 2003, be removed from the All Ports Watch Alert System by officers or agents of the Australian Federal Police upon receipt of a letter from the Mother, Ms Randle (or her solicitors Hopgood Ganim), advising of the travel arrangements made for the said child to return to the UAE from 12.00 am on the date nominated for the said travel in the letter;
(e)The Marshal of the Family Court of Australia, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders;
To facilitate the return of the said child, S, born … April 2003, to the UAE:
(a)The Mother shall travel to Australia to collect S as soon as she is reasonably able to so do and within fourteen (14) days of today’s date;
(b)The Mother shall give notice in writing to the Father as to when she will arrive in Australia and shall likewise notify the Father as to a time and place at which she will collect S from the Father and the Father shall ensure S is made available for collection by the Mother at the time and place so notified;
(c)S shall be permitted to leave the Commonwealth of Australia in the care of the Mother, Ms Randle, as soon as the Mother can travel to Australia for that purpose;
(d)The Mother shall be permitted to leave the Commonwealth of Australia with S no later than midnight on 6 March 2012;
(e)The Respondent Father, Mr Randle, shall pay all the necessary expenses associated with returning S to the UAE, including the cost of airfares for the Mother, Ms Randle, to travel to Australia to collect S for the return and the cost of airfares and departure taxes (if any) for S to travel from Brisbane Airport to City 1 in the UAE and in the event the Respondent Father fails or refuses to pay these expenses; the Applicant Mother, Ms Randle, may recover the necessary expenses incurred by or on behalf of herself and S in returning S to the UAE as a debt due and payable by the Father within two (2) business days of the Applicant Mother making a written demand for reimbursement of the said expenses.
A recovery Order shall lie in the Registry and shall activate only if the child, S, is not handed over to the Mother for the purpose of travel to the UAE by midnight on 6 March 2012;
Both Ms Randle and Mr Randle be restrained, and an injunction is hereby issued restraining them, from pursuing any proceedings in the UAE in respect of any parenting or care arrangements for S and from instituting further such proceedings or enforcing any existing or future Orders made by the Courts of the UAE in respect of S.
Pursuant to s 65L of the Family Law Act 1975 (Cth), the Father is to forthwith cause S to attend at Child Dispute Services in the Brisbane Registry of this Court immediately following delivery of this judgment so that Ms B, Family Consultant, may assist the parties by explaining to S the effect of the parenting Orders and to otherwise provide the parties with such assistance as they may reasonably require to comply with and carry out these Orders.
All applications regarding parenting Orders be removed from the pending cases list.
The parties and the Independent Children’s Lawyer have liberty to apply as to the interpretation or for the purpose of giving effect to these Orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11866 of 2010

Ms Randle

Applicant

And

Mr Randle

Respondent

REASONS FOR JUDGMENT

Introduction

A central feature of this case is the removal of the parties’ child, S, born in April 2003, from his lifelong home in the United Arab Emirates (“UAE”) by the Australian-born Father, Mr Randle, without the knowledge or consent of the Scottish-born Mother, Ms Randle, on 10 June 2011. This was in the context of both parties having resided in the United Arab Emirates for over eleven years, including all of S’s eight years of life.
It is a feature which assumes prominence because, depending upon the findings made in relation to it, many of the considerations expressed in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), which the Court must consider in determining what is in S’s best interests, are brought into focus. These include the primary considerations expressed in s 60CC(2) and a number of the additional considerations expressed in ss 60CC(3) and (4). By way of illustration, if the Father is to be believed on his version that at the time of his removal of S on 10 June 2011, he was motivated by what he thought to be in S’s best interests, and such removal was to be temporary only, such conduct has a different complexion than the alternative. On the alternative, there is evidence to suggest that the Father was motivated, not because of what was best for S, but by the escalating dispute between himself and the Mother on many issues, including financial issues, and as a means by which the Father might advance his own perceived interests. Obviously, depending on which was truly the case, there are obvious ramifications in applying the statutory considerations referred to.
That unauthorised removal prompted the Mother’s filing of an Initiating Application in this Court on 30 June 2011 requesting the immediate return of S to the UAE, amongst other Orders and to seek an urgent hearing of her application. The international factors which complicate this matter, including the need to determine the effect of Sharia law under which parenting Orders for S would be determined in the UAE, resulted in a number of interim hearings being conducted on 15 July, 8 August and 2 and 27 September 2011. The culmination of those hearings was my decision, on 27 September 2011, that it was not in S’s best interests that a summary Order for his return to the UAE be made at that interim stage but that, instead, there ought be a trial of the parenting issues in Australia to determine parenting Orders in S’s best interests. Detailed reasons for judgment were handed down on 27 October 2011 outlining the relevant history to that point and the reasons for refusal of a summary Order for return, and I will not repeat those reasons here. Suffice to say that the consequence of those Orders was the listing of this matter for an urgent trial held over four days commencing 29 November 2011. I subsequently permitted the parties to reopen the evidence for the limited purpose of providing an agreed translation of the judgment delivered in the UAE in January of this year in relation to the criminal proceedings against the Mother referred to further below. These reasons follow the conclusion of that trial, including consideration of the evidence the subject of the reopening.

Brief Background

Much of the background of the parties’ relationship is set out in my interim reasons for judgment delivered 27 October 2011, and I do not propose to repeat that history except as is necessary to contextualise the issues in dispute at trial. Those reasons reflect that there were many issues of disputed fact and consequent limitations, given that in interim proceedings evidence cannot be tested by cross-examination to make concluded findings. There are also many aspects of the history of this matter which are contested. Those disputed facts will be dealt with in further detail in the course of these reasons and the parties’ credit, given the nature of the disputed issues, has assumed particular importance in this matter.
I refer to my reasons delivered in respect of the interim determination on 27 October 2011. I do so because they are relatively recent and because a better understanding of the history of the matter can be gained by reading those reasons in conjunction with these reasons and I have made some references in these reasons to my earlier reasons.
However, I make it plain that my earlier reasons were delivered following interim hearings when evidence was not tested by cross-examination and otherwise it was not possible to reach concluded findings on many factual issues. Moreover, many issues have been expanded upon or put in a different perspective in the current trial. Thus, whilst my previous reasons may provide some assistance in understanding the matter I have made findings afresh on the evidence before me at this trial and I have relied on that evidence and these findings in reaching my determination as to final parenting Orders.
The Mother was born in 1965 in Scotland, and met the Father, born in 1952, in Brunei Darussalam in 1998. The parties lived there together for approximately two years before marrying in Australia, the Father’s homeland, in June 2000. Only a few months later in August 2000, the parties moved to the UAE and jointly founded a healthcare business there which would eventually become known as Company 1. More will be said about Company 1 and the parties’ involvement in that enterprise shortly.
Both parties brought their children from former marriages to the UAE (although the Father did not do so immediately); the Mother, her son, C, and the Father, his sons D, Z and N. The circumstances in which the Father’s sons came to the UAE will be the subject of discussion later in these reasons.
The child the subject of these proceedings, S, was born in April 2003.
The parties separated in June 2010, but continued to live under the same roof until December 2010, at which point the Father left the former matrimonial home. The Father then spent a period overseas, and upon his return found new, separate, accommodation in the UAE in January 2011. The parties dispute whether or not an arrangement was made between them at that point for primary care of S to rotate on a three month about basis (with the Father alleging such an agreement was made and the Mother rejecting that allegation), but both parties agree that the reality was that in the period from January 2011 until his removal on 10 June 2011, S lived primarily with the Mother and spent time with the Father on alternate weekends and each Tuesday afternoon.
The Mother, in her oral evidence, stated that the Father then raised with her via text message in March 2011 the issue of S commencing to reside primarily with the Father following the Mother’s birthday in early April. This was said by the Father to be on the basis of the alleged three month about agreement which was supposed to have commenced operation in January 2011. Both parties agree that there is no written record of such an agreement, but the Mother further alleges that there had never been such an agreement. The Mother gave oral evidence that the lack of any such agreement, combined with the Father’s March 2011 text message requesting that she hand over S, caused her to commence parenting proceedings in the Sharia (Islamic) courts in approximately March 2011 requesting that an Order be made that S live primarily with her.
There is a dispute between the parties as to at what exact point the Father became aware of the Sharia law proceedings. The Mother contended in her oral evidence that, on the advice of the Sharia Court, prior to commencing proceedings she went to see a Sharia counsellor. She states that the counsellor attempted to contact the Father for the purposes of conducting a mediation between the parties, but that the counsellor informed her that the Husband had refused to attend as he was living in UAE City 1 and the mediation was to take place in UAE City 2, a neighbouring emirate. I take judicial notice of the fact that the two cities are approximately twenty kilometres apart.
The Father denies having ever received such a telephone call. To the contrary, he deposes in his affidavit filed 12 July 2011 that the first he heard of any proceedings in the Sharia Court was a misdirected telephone call at Company 1 in May 2011. I note that this is inconsistent with the Mother’s uncontested oral evidence and the Father’s affidavit of 12 July 2011 that the Father’s legal representatives in the UAE attended a hearing on his behalf in the matter on or about 27 April 2011. The Father nonetheless gave oral evidence that it was this misdirected telephone call that motivated his appointment of legal representation and involvement in the Sharia Court proceedings. The Mother, by contrast, gave oral evidence that the Father had known of the proceedings for their entire duration.
Both parties agree that at around the time the Mother commenced proceedings in the Sharia Court with respect to S, disputes between the parties regarding Company 1 came to a head. The Father suspended the Mother’s employment (and ceased payment of her salary) on 20 March 2011. This was on the basis of the Mother removing funds from the business that the Father alleged she was not entitled to remove, and the Mother was notified that the removal of funds had been referred to the company’s auditors for investigation. The Father’s 12 July 2011 affidavit attaches a report from the UAE City 1 Public Prosecution which states that the Father made a criminal complaint against the Mother regarding this alleged stealing of funds on 15 May 2011. The Father also instigated civil proceedings against the Mother to recover the monies allegedly stolen on an interim basis until the criminal charges could be finalised (the criminal proceedings were finally concluded in January 2012, with the Mother being acquitted of all charges, as set out in the parties’ agreed translation of the judgment which was attached to an affidavit of the Mother’s solicitor, Ms Rachel Murray, filed 31 January 2012 pursuant to leave given to all parties to reopen the evidence to include evidence as to the outcome of those proceedings in the UAE).
The Mother commenced civil proceedings against Company 1 at around the same time the Father instigated criminal proceedings against the Mother. The civil proceedings, known as a “labour dispute” in the UAE, claimed monies from the Father for unfair dismissal and for what the Mother alleges is her share of the profits generated by Company 1. The Father defended this claim, alleging that Company 1 was solely owned by himself and not by the parties jointly and thus that the Mother had no right to any portion of its profits. An interim judgment in those civil proceedings in the UAE was delivered on 25 October 2011 awarding the Mother 55,000 dirhams;[1] however, a final judgment was to be delivered following the resolution of the criminal proceedings referred to above. At the time of the delivery of these reasons, that final judgment had not yet been handed down.
[1] I take judicial notice of the fact that, at the time of writing, this amounted to approximately AUD$14,700.00.

The next event of note was S’s removal from the UAE by the Father on 10 June 2011. There is disagreement about the motivations for this removal, but it is not contested that the removal on this date was done without the Mother’s knowledge or consent. The Mother was only notified of S’s removal via a text message sent on the day S was removed which instructed the Mother to check her e-mail. The Mother gave oral evidence that the Father had told her S would be attending a concert with the Father as part of the Father’s ordinary Thursday afternoon to Sunday morning alternate weekend at this time. The e-mail referred to notified the Mother that the Husband had decided to “start our [The Father and S’s] summer holiday earlier” by leaving for Australia prior to the allegedly planned 24 June 2011 start date (the Mother contests that S was ever supposed to be going to Australia for a holiday during this period at all). The Father remained in the UAE (on his evidence, to finalise his business affairs before Company 1 closed for the summer holiday period) while S travelled to Australia with the Father’s eldest son from his first marriage, D.
The Mother, after being given conflicting reports as to S’s whereabouts, became concerned as to the Father’s intentions regarding S’s return to the UAE and flew to Australia to attempt to recover S. This came to a head in an incident at the paternal grandmother’s home (where the Mother had been told S was staying) on 22 June 2011, which is described further below. Having failed to recover S on that day and remaining concerned that the Father did not intend to return S to the UAE, the Mother filed an Initiating Application in this Court on 30 June 2011. Due to the issues of private international law involved in an unauthorised removal from a non-Hague Convention country (the United Arab Emirates not being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction), several interim hearings were required to deal with issues of forum and summary return. Those issues were decided upon through Orders made on 27 September 2011 and a detailed explanation of the relevant law and issues was provided in my reasons for judgment published 27 October 2011. As noted above, the effect of the 27 September 2011 Orders was that S would not be summarily returned to the UAE, but rather that S should remain in Australia while a full hearing of the parenting issues was conducted under Australian law.
That is an exceptionally brief account of the history of the parties’ interactions. However, given the highly contested nature of many of the events over, in particular, the last year, no further useful detail can be provided without first making findings as to the parties’ credit in association with findings on the issues discussed.

Credit Issues

The Father

Counsel for the Independent Children’s Lawyer submitted at the conclusion of the trial that significant adverse findings ought be made about the Father’s credit. I agree with that submission for the reasons which follow. I will outline the most significant inconsistencies in the Father’s evidence which, when combined with his demeanour during the trial, have led me to conclude that his evidence was wholly unreliable, especially where it concerned any fundamental issues of disputed fact; or the Mother or the Mother’s son from her first marriage, C. What follows is a rather lengthy analysis of those inconsistencies; however, such detail is necessary to explain the weight (or, more accurately, the lack of weight) that can be afforded to the Father’s version of key events and to reach findings on those events.
I subscribe to the view that this Court, particularly in parenting proceedings, should refrain from making adverse credit findings against either parent if the disposition of the case can legitimately be achieved without the need to make such findings. Unfortunately, in this case, and for reasons which will become apparent, I do not consider that the determination of parenting Orders in S’s best interests can legitimately be achieved without careful consideration of some fundamental credit issues.
I should also note that whilst each of the parents was legally represented by solicitors and Counsel throughout the interim stages of the proceedings and for some time thereafter, at the trial itself, both parents were self-represented, although their affidavit material for trial, or much of it, was prepared with the assistance of their respective lawyers. Whilst there are undoubtedly disadvantages for non-legally qualified parties in representing themselves in an adversarial process in this Court, one collateral consequence which may not necessarily be a disadvantage is that a trial judge has the opportunity of assessing the parties not solely in the role of witness, but also in the manner in which they conduct themselves throughout the trial process. Moreover, some of the disadvantages of self-representation are ameliorated by the feature that parenting proceedings are conducted pursuant to Division 12A of the Act, which sets out the principles for conducting child-related proceedings, and provides the duties and powers to give effect to the principles under which such proceedings are conducted. In this case, there is also the feature that S’s interests were separately represented by an Independent Children’s Lawyer, who appeared by his Counsel, Ms McArdle.
As already noted, in August 2000, the parties commenced living in the UAE and jointly founded a business which eventually became known as Company 1. It was not in issue that in the UAE, persons who are not nationals of the UAE are not permitted, by law, to be the registered proprietors of a business. It was also not in issue that expatriates, or non-nationals such as the Father and the Mother, utilise devices to overcome that limitation. Exhibit 4 before me reflects the use of a Power of Attorney, whereby the nominated “owner” national of the UAE appoints the persons (who may fairly be regarded as the true beneficial owners) as attorney to “manage” the relevant business.
The Mother’s case was that Company 1 was at all material times beneficially owned by the parties jointly. Aside from the Mother’s own clear and direct evidence on this, which I accept, there is a body of evidence to corroborate the Mother’s case. For example, Exhibit 4, being the Power of Attorney dated 19 November 2004, records the appointment by the UAE national “owner” of both parties, “…to jointly and/or severally manage the business…” Exhibit 6, being the License for Company 1 issued by the government of UAE City 1, reflects that both parties were the “managers” of the business. Most importantly, Exhibit 3 is a promotional brochure for Company 1. When cross-examined about Exhibit 3, the Father acknowledged, initially, that to be a document he authorised. He attempted to retreat from that acknowledgement when taken to specific contents of Exhibit 3.
For example, under the heading “Overview” at the beginning of the document, the following is recorded:
In 2002, [the father] and [the mother] established a […] programme in the UAE that was to become [Company 1].
Plainly enough, that reflected the Mother’s case that Company 1 was a joint endeavour of the parties. The document ends with a biography of each of the parties. Under a photograph of the Mother and her name, the following appears:
[The mother] is the [Director] and Joint Owner of [Company 1], in [UAE City 1].
(emphasis added)
Cross-examined about the document, the Father displayed a mystifying reluctance to accept the plain meaning of it. Having initially acknowledged his authority and control over the contents of the document, the Father purported to suggest that the latter entry in the document was issued at the Mother’s insistence despite his protests. I reject the Father’s evidence about this.
Plainly enough, from at least March 2011, the Father had undertaken steps in UAE City 1 to treat the Mother as if she was an employee of Company 1, with no proprietary or other interest. As earlier noted, the Father purported to suspend the Mother’s employment and cease to pay her any salary from Company 1 on 20 March 2011. More seriously, he had alleged against the Mother the wrongful removal of funds from Company 1 and caused a criminal complaint to be made against the Mother to UAE City 1 Public Prosecution authorities, as well as instituting civil proceedings against the Mother to assert a right of recovery of the monies allegedly stolen. Exhibit 5 reflects that the Father somehow managed to cause, on 23 June 2011, the cancellation of the Power of Attorney in favour of the Mother. Whilst the Father compounded his false evidence on this topic by suggesting that such cancellation had occurred far earlier, Exhibit 5 on its face shows that this was not recorded by the authorities in UAE City 1 until June 2011.
Thus the Father purported to treat the Mother as an employee of Company 1 when, in truth, there is evidence, which I accept, to demonstrate that the Mother was, at all material times, beneficially entitled to proprietorship of Company 1 to an extent of at least no less than the Father.
Plainly enough, it reflects adversely on the credibility of the Father as a witness that he would maintain a case, which I reject, to the effect that he was solely beneficially entitled to Company 1 in attempting to justify his conduct. Moreover, in the context of these proceedings, the effects of that conduct were significant. First, it caused the Mother to be cut off from the only financial support she had in the UAE and which had been her source of support at least since 2002. Second, the alleged wrongful removal of funds resulted in both civil proceedings in UAE City 1 as well as a criminal prosecution. As can be seen from my reasons delivered on 27 October 2011, the prospect of the Mother being deported from the UAE or being imprisoned in the UAE, as agitated by the Father, had to be considered in determining whether it was in S’s best interests that a summary Order for return to the UAE be made. That remained the position in these proceedings up until last month, when the judgment reflecting the dismissal of those charges, or the Mother’s acquittal on all charges, came to pass.
It is also notable that the subject matter of the alleged wrongful removal of funds was the Mother’s use of those funds to pay for C’s school fees. The evidence before me establishes that Company 1 had historically met those fees. Thus, the Mother used the withdrawn funds to pay an expense traditionally met by Company 1 from a source in which she had a proprietary interest in circumstances where the Father had cut her off financially.
Thus it is that by his own malicious and wrongful conduct, the Father engineered the position that the Mother faced criminal prosecution in UAE City 1 and the Father relied upon the fact of that prosecution as a central plank in resisting a summary Order for S’s return to the UAE at the interim stage of these proceedings.
Given the apparent temporal connection between the Mother’s institution of proceedings concerning S in the Sharia Court in the UAE, on the one hand, and the Father’s actions concerning Company 1 and the Mother and his subsequent removal from the UAE on the other; these issues resonate both as to substantive findings as well as credit issues. As already noted in the discussion of the background facts above, an inconsistency in the Father’s evidence arose regarding his knowledge of the Sharia Court proceedings commenced by the Mother in March 2011. The Father’s affidavits filed 12 July 2011 and 23 November 2011 both contain the deposition that the Father only discovered that those proceedings were on foot as a result of a misdirected phone call in May 2011. The Father further states in the 12 July affidavit that he, “…was never contacted or served with papers in relation to [the mother’s] application to the Sharia Court during the months of March or April 2011.” However, in that same affidavit, the Husband admits that his lawyers did attend the Sharia Court on 27 April 2011 (consistent with the Mother’s oral evidence), establishing that the Father certainly knew about the proceedings prior to any phone call in May, as otherwise his representatives would not have attended the 27 April 2011 hearing on his behalf. The Father’s oral evidence confirmed that he did in fact have knowledge of the proceedings four days prior to the 27 April hearing, indicating that his affidavit evidence regarding the May 2011 telephone call had to be incorrect, and that he must have discovered the proceedings in some other manner. In what manner these proceedings were actually discovered was not resolved at trial. I note that the use of the May 2011 date as the date of the misdirected phone call is unlikely to be a typographical error as it was repeated in both of the Father’s trial affidavits (sworn 12 July 2011 and 25 November 2011, some four months apart).
Two further issues have particular significance in the context of proceedings involving an unauthorised international removal of a child. First, the Father’s motivations for removing S from the UAE to Australia, and second, the point at which the Father decided S would not be returning home.
Regarding the first, the Father gave both oral and affidavit evidence that the “major consideration” in his removal of S from the UAE was the report of psychologist Dr HR, which raised concerns about S’s mental and emotional well-being at the time. In his oral evidence, the Father rejected the proposition that his concerns were about the Mother’s care specifically, but stated that instead his concerns were regarding the “environment” in which S was living. As examples, the Father raised that the Mother’s home in the UAE was close to two freeways and located in the desert and that the location of that home meant that S had limited opportunities for friendship, sports activities and other after-school activities. However, under cross-examination by the Mother, the Father admitted he knew none of the names of the children living in the housing community where the Mother’s house was located with whom S played and accepted that S did in fact play Sport 1 after school each week in the UAE. This, of itself, is not a major inconsistency. However, it does not sit comfortably with the Father’s earlier oral evidence that the environment in which S was living with the Mother was not “suitable or safe” and was “morally bad”, constituting an “unacceptable risk” to S.
The Father’s affidavit evidence also, in contrast with his oral evidence that it was not the Mother’s care for S that concerned him but S’s “environment”, focuses on the risk that the Mother personally posed to S’s welfare. Specifically, the Father’s 12 July affidavit states:
[48] the circumstances at this time that were affecting [S] on a day to day basis was the fact that [the mother] had no tenancy agreement, no income as she had refused to take a job with the company or settle, she was facing charges for embezzlement and she was extremely stressed. This was being reflected in her lack of appropriate care for [S].
…
[53] After reading the report of the psychologist I felt that it was imperative that I take steps to relieve the stress on [S].
[54] I carefully considered what I thought was in the best interests of [S]. Having read the psychologist’s report and knowing [the mother’s] situation and the fact that I did not think that she could support him. (sic)
[55] I decided it would be best if [S] commenced his holidays two (2) weeks earlier than as planned.
…
[60] The other factor in this was the issue of [the mother’s] future. After consulting with my solicitors in relation to the embezzlement charge against [the mother] I was advised by them that she was facing up to five (5) years’ minimum jail in [UAE City 1], deportation and a hefty fine.
[61] I therefore considered that to allow [S] to continue to live with [the mother] placing [S] at risk and that his needs were not being properly taken care of.
The Father’s 23 November affidavit further states:
[98] I believed that the changing circumstances of [the mother’s] life had made living with [the mother] unstable and, as referred to above, living with [the mother] in her current situation was not in his best interest and had reached a point of unacceptable risk to his welfare.
This indicates that it was in fact the Mother, and not primarily the “environment” in which S was living, which motivated the Father’s removal of S from the UAE. In this respect, the Father’s evidence was not only inconsistent but disingenuous, given that all of the Mother’s problems listed in the excerpts above were caused by the Father’s own actions. In this respect, the evidence which I accept establishes:
a)The Father had actively taken steps to have the Mother’s tenancy of the home in which she lived (and where S lived) terminated;
b)It was the Father’s own malevolent conduct in treating the Mother as if she were only a servant or employee of Company 1, rather than as a beneficial co-owner, and suspending her employment and income that put the Mother’s financial security in jeopardy;
c)On the evidence before me in Exhibit 13, the reference to the Mother’s refusal to “settle” was the Mother’s refusal to settle on the terms being dictated by the Father as reflected in his proposed “settlement agreement” dated 26 May 2011. Having reviewed the content of that document and her evidence about it, I accept the Mother’s evidence that she had good reason to consider those terms to be unreasonable and thus not to settle on those terms;
d)The Father was solely responsible for the Mother “facing charges for embezzlement”. Apart from what has already been said about this, I am not sure which is the more remarkable; the Father’s attempts to distance himself from this by pointing to Company 1 as a separate entity from himself “owned” by another (a UAE national) in the circumstances already described; or the Father’s presumption that this Court would be sufficiently gullible to accept his version in this respect.
As to this criminal prosecution, there are only two possibilities open as to the Father’s aims. Taken from paragraph 60 of his 12 July 2011 affidavit referred to above, the Father suggests that the Mother was, “…facing up to five (5) years minimum jail in [UAE City 1], deportation and a hefty fine.” Thus, on one interpretation, it was the Father’s aim to see S’s mother incarcerated in gaol in UAE City 1 for not less than five years. The alternative interpretation is that the criminal prosecution was designed to place the Mother under as much stress or pressure as possible, even though he knew there was no merit in his causing criminal charges to be prosecuted against the Mother. Either interpretation reflects very poorly on the Father.
In the result, I note that the Courts of the UAE have found that not only was the Mother unfairly dismissed from Company 1, but that, in relation to the criminal charges:
The Court is convinced that the reason which made the Claimant [the Father] accuse the Accused Woman [the Mother], who was his wife and from whom he got a child, is to take revenge from her after the disputes which happened between them and made them approach the Courts. The Court concluded also that the reason behind such cases is the wish of each party to take the custody of the child after the divorce. Accordingly, the current report against the Accused Woman was malicious and the documents of the Claimant did not include any evidence proving such accusation or the criminal intents of the Accused Woman.
This is perhaps one of the most damning pieces of evidence in terms of the Father’s credibility. To bring not only a civil case for compensation but a criminal case against the Mother which had no basis and which was, on the decision of the Sharia Court, designed as a form of “revenge” in the dispute over with whom S should live, is abominable and shows a total lack of respect for the legal system. The law is to be used to obtain justice, not as part of a war of attrition to force an otherwise just opponent to concede defeat. That is particularly so in cases involving children, when the parties should set aside their own wishes in favour of the best interests of their child. I further note that there is sufficient evidence before this Court for me to agree with the Sharia Court’s conclusions as to the Father’s motivations in bringing the Court cases against the Mother in the UAE.

A further blow to the Father’s credibility is dealt by the inconsistencies in his evidence regarding at what point he decided that S would be remaining permanently in Australia, rather than returning home to the UAE after a holiday. The Father gave oral evidence that it was his intention, at the time S left the UAE, that S would be returning on 4 August 2011. The Father gave further oral evidence that it was his hope that the issues detailed above which he believed justified S’s removal could be resolved during that time. I find this a highly improbable account of the Father’s state of mind at the time given that the Father knew that some of the issues, such as the criminal charges he had instigated against the Mother and her consequent inability to be employed until their resolution, were unlikely to resolve in that short time.
Nonetheless, the Father deposes that his decision to move both himself and S to Australia permanently was only made following the events of 22 June 2011, when both parties agree the Mother attended upon the paternal grandmother’s residence in Town H in an attempt to at least see, if not recover, S. It is agreed that some sort of altercation ensued, although the exact details are disputed (save for the Mother’s agreement that her brother used aggressive language towards the Father’s eldest son, D, in her absence). That this event was the sole trigger for S’s retention in Australia by the Father is clearly set out in paragraph 99 of the Father’s 23 November affidavit, in which the Father deposes:
[99] I certainly at that time [10 June 2011] had no intention of moving from [UAE City 1] to reside in Australia. This was only as a result of the events which occurred on 22 June 2011 when [the mother] violently tried to remove [S] from my mother’s home in [Town H].
(emphasis added)
This, however, appears inconsistent with several other statements made by the Father. For example, the Father gave oral evidence that he had always intended to move to Australia in 2012 given that he believed that he could not obtain a visa to remain in the UAE once he had turned 60 years of age (the age the Father will reach in August 2012). Furthermore, the Father also deposed that his decision that S should remain in Australia permanently was, “…a decision that Australia was the best place for S to live.” This appears to indicate that the decision was made based upon a comparison of the living conditions in the UAE and Australia rather than due to any particular incident. I note that if the Father genuinely believed that living in Australia was best for S, his “settlement agreement” of 26 May 2011 (Exhibit 13) is very strange as it is predicated on the parties and S continuing to reside in the UAE.
The Father’s version that the decision to remain in Australia was only made on 22 June 2011 also appears inconsistent with the Father’s attempts to conceal S’s whereabouts from the Mother even before 22 June 2011. Such concealment would not have been necessary had S only been in Australia on a holiday. All that would have been required was a simple explanation of the situation to the Mother; namely, that S was only in Australia on a temporary holiday with his father and paternal relatives and would be returning in August in time for the commencement of the new school year. There is no evidence to support the Father’s contention (and nor did he persist in his oral submissions with such an allegation) that the Mother came to Australia with the, “…purpose of taking [S] by stealth back to Scotland.” Had that been true, then the actions of the Father, D and the paternal grandmother, in concealing S’s whereabouts may have been justified, but it is clear that the Mother never had such an intention nor did the Father have cause to suspect that was so.
These attempts at concealing S’s whereabouts from 10 June 2011 began with the Father’s admitted failure to inform the Mother (except via text message in reference to an e-mail sent on the day) that S was going to Australia on 10 June 2011.
The Father gave oral evidence that he tried to notify the mother “as soon as possible” that the holiday was happening two weeks earlier than planned. This is in the context of the Father’s further oral evidence that he had booked the flights to leave on 10 June approximately one week beforehand but only notified the Mother of those flights on the morning S was to leave. This appears even more disingenuous given the Father’s affidavit and oral evidence that he decided not to tell the Mother about the earlier departure date until the morning of S’s departure to avoid causing conflict with the Mother. I therefore find that the Father purposely concealed S’s intended departure date from the Mother. How the Father expected to avoid causing conflict by removing S from the Mother’s care and from the UAE without the Mother’s knowledge or consent beggars belief. In truth, the Father abducted S in conjunction with what is contained in his 10 June 2011 e-mail as a means of extortion for the Mother to accept his demands on, mainly, financial issues.
The extent of concealment was revealed when, despite the Father’s oral evidence that this notification e-mail was sent at 8.00 am on 10 June 2011, the Mother produced evidence that she only received it at 7.06 pm on that day, well after S’s midday departure from the UAE. The Father attempted to explain the difference in the times by contending that there were problems with the Mother’s e-mail, but given that no evidence was produced in that respect (the Father did not produce a print-out of the e-mail sent from his inbox, which would clearly state the time the e-mail was sent), I find that the reasonable inference is that the Father did not in fact send the Mother an e-mail notifying her of S’s departure until well after his plane had left, at approximately 7.00 pm that night.
In addition, the content of that e-mail sent by the Father on 10 June 2011 to the Mother uses language from which a reasonable person would infer that the Father had already made the decision to remove S permanently from the UAE on the basis that the Mother no longer had the ability to care for S. It is important that the comments in this e-mail be read in the context of the Father expecting a judgment to be handed down imminently in the Sharia Court parenting case and where the Father knew that the Sharia Court applied a presumption that a boy under the age of 11 should reside with his mother. The e-mail reads as follows:
Dear [the mother’s first name],
We have started our summer holiday early and gone to Australia.
Here is a letter from [S]:
Dear Mummy:
I want all the trouble to stop. I only want to come back if things are normal and I can be happy.
[S]
When [S] came home last night, I discussed a few things with him and we agreed it was time he went to Australia.
When we were getting ready to leave this morning, I read [S] parts of the psychologist’s report. We then looked at the Bible to see if we could read something significant. [S] and I just opened the Bible and this is what we read,: “Listen to me, my child, and learn knowledge, and give your whole mind to my words, I will explain and develop order and discipline for you and show you knowledge by education.” (Ecclesiasticus 16:24) God will bless [S] in his journey.
The psychologist’s report, of April 27, 2011, by [Dr HR], states that [S] is “a friendly and compliant young boy experiencing significant stress, sadness, fears, and confusion [which is] very concerning from a clinical perspective”.
The situation has become intolerable. My happy little boy is no longer happy in the circumstances that have arisen due to the conflict you have instigated: An environment you have brought about with your conflict, deception, lies and theft. I do not consider [S] living with you to be morally safe for our child but rather, living with you has become morally dangerous.
I suggest you consider the situation that you have created and think of bringing some changes.
Some things to consider:
-    You have been charged with stealing money of more than Dhs: 160,000 from [Company 1] (Case No. […])
-    You have planned, secretly, to take over [Company 1] in 2010 and leave me destitute.
-    You are still currently planning to start a business involving [Ms V] and to steal staff and clients.
-    You are telling people that a policeman has said he will help you cause me trouble and try to stop the case against you for theft going to the prosecutor.
-    You are in violation of the Divorce Order from The Australian Federal Court for joint custody and care of [S]
Your unethical life, your aggression and conflict has, and is, affecting [S] and it has to stop. When we agreed to divorce, as part of that agreement, we agreed to care for [S] equally. But you have created an environment that is not suitable or safe for [S].
Please contact [S] in Australia via my son [D’s] phone only. [S] is happy and you can talk to him any time once [D] is connected on Sunday.
For further correspondence, please contact my solicitors.
(emphasis in original)
This e-mail, to a reasonable observer, indicates that the Father is intending to remove S for more than a simple summer holiday given the allegedly entrenched problems with S being in the Mother’s care. Indeed, the Father himself admitted in oral evidence that, although he had not considered it at the time he wrote the letter, the Mother “would” interpret this e-mail as meaning that S was not going to be returned to the UAE. Only minutes later, the Father “adjusted” his evidence to say that the Mother “could” have interpreted the e-mail in such a way, although he believed that the use of the word holiday in the opening sentence would have disabused the Mother of such an opinion. This change in evidence provides an example of the Father’s habit throughout his oral evidence of changing his evidence upon realising its detrimental impact upon his case. Nonetheless I find, as the Father accepted was possible, that a reasonable person would read this e-mail as indicating an intention to remove S permanently from the Mother’s care as at 10 June 2011.
Some further matters need to be noted about this e-mail and the Father’s motivation. They are, in no particular order of importance, as follows:
a)The opening sentence, “We have started our summer holiday early and gone to Australia,” is an outright lie. The Father did not travel with S on 10 June 2011, but remained in UAE City 1. The Father put S on a plane with the Father’s son, D. Thus, even accepting S to be, “…experiencing significant stress, sadness, fears and confusion,” the Father’s “solution” was to remove S from his mother’s primary care and send him halfway around the world unaccompanied by either of his parents and to mislead the Mother into thinking that the Father had travelled with S;
b)The e-mail plainly records the Father’s active involvement of S in what are plainly adult/parental issues. Cross-examined about the processes involved in the “letter from [S]”; and “I discussed a few things with him”; and “I read [S] parts of the psychologist’s report” and the Bible reading, the Father’s evidence disassembled to a degree that would have been comical were the issues not so serious;
c)The “things to consider” outlined in the e-mail are the true signposts to the Father’s motivation. The dispute between the parents on financial issues was at the forefront of the Father’s thinking (as well as the Sharia Court proceedings) and in that context, the Father’s conduct in removing S not only from the Mother’s primary care, but from the jurisdiction of the UAE was, I find, malicious and vindictive and was not motivated by any view of the Father as to S’s best interests;
d)Assertions to the effect that the Mother herself presented “moral” dangers to S or that the Mother had, “…created an environment that is not suitable or safe for [S],” are irreconcilable with the Father’s proposed “settlement agreement”, dated 26 May 2011 (Exhibit 13), compiled only some fourteen days prior. By that proposal, the Father proposed shared care arrangements for S which plainly contemplated S and his parents remaining in the UAE.
The Father protested, during his oral evidence and submissions, against allegations that he was concealing S’s location prior to 22 June 2011. In this context, his affidavit of 12 July 2011, at paragraph 64, states that after the Father sent the initial e-mail to the Mother detailing S’s removal:
[The Father] had further communications between [himself] and [the mother]. I told [the mother] that [S] was safe and well and staying with my mother in [Town H] as had been arranged previously. I told her that he would be returning to [UAE City 1] at the end of July and that she could contact him any time she liked.
The Father’s oral evidence, however, was unequivocal that there was no communication between himself and the Mother between 10 and 22 June 2011. I find that the Father’s oral evidence is more likely to represent the truth of the matter as that sits far more comfortably with the events of 22 June 2011. The Mother’s conduct on that day was more consistent with a parent who was concerned their child had been permanently removed from their care than a parent who had been assured S was simply away on a planned holiday for just shy of eight weeks. I also note that the Father’s evidence in this respect details an intended return date of the end of July, whereas the Father’s oral evidence clearly referred to the Father having booked flights with a return date of 4 August 2011. This further undermines the reliability of the Father’s evidence regarding S’s alleged “holiday” to Australia.
The Father’s evidence regarding at what point he decided to retain S in Australia must also be viewed in light of the evidence of one of his sons from his first marriage, N. N deposes in an affidavit filed 25 November 2011 (I note, filed in the Mother’s case) as to what occurred when he and his brothers went to visit the Father in Brunei when he was approximately eleven years of age. At the time, the Father and N’s mother had separated and all three children of that marriage were living with the Mother. The three boys travelled to Brunei on what was intended to be a holiday when N deposes that the following occurred:
When I arrived, I met dad and [D] in the airport car park. Dad took me aside and asked me directly how I would feel about moving to Brunei to live with him. I replied that I would like to finish year 6 first, but he told me that if I wanted to live with him I had to decide now or I would never get another chance. So I nodded my head and got into the car. A few days later dad had a similar conversation with Z and once he had agreed, dad decided that we needed to tell our mother how we felt.
N deposes in that affidavit that he and his brothers never returned from Brunei to their mother’s care. Furthermore, when the Father informed his sons that they would be moving to UAE City 1 for the Father’s work, N deposes that the Father went about the relocation as follows:
Dad told us that he needed to obtain our American passports from our mother to properly migrate to [UAE City 1], but he told us that we were not allowed to tell her why we needed them under any circumstances. I couldn’t resist and when I was asked by my mother why we needed the passports I informed her that we would be moving to [UAE City 1]. She did not agree with this sudden location change and refused to give over possession of the passports to my father.
Whilst N filed his affidavit in support of the Mother’s case, it was apparent from the Father’s cross-examination from N that they are not estranged. Clearly enough, N felt sufficient concern about history repeating itself to advance evidence in support of the Mother notwithstanding that he is plainly still on good terms with the Father.
Taking into account the version of N, it is clear enough that the Father’s removal of S without the knowledge or consent of S’s other parent is not the first time the Father has been prepared to undertake such conduct as a means of addressing any perceived parental conflict. Moreover, it suggests a pattern of behaviour whereby the Father is prepared to conceal his intentions until a relocation has already occurred and it is too late for either the children or the other parent to protest. The Father did not dispute, when cross-examining N, any of his son’s evidence in this regard. On the balance of that overwhelming evidence, I therefore find that the Father intended, as at 10 June 2011, to remove S permanently to Australia and that his protestations that this decision was only made on 22 June 2011 are false. Given that this is a pivotal issue in this case, I find that this significantly, if not totally, erodes the Father’s credibility.
Although that constitutes the major inconsistency in the Father’s evidence, it is far from the only one. Rather than going through each and every incongruency in the Father’s case, I will set out the “highlights” of the Father’s further inconsistencies which explain the lack of weight I afford most of the Father’s evidence.
An important issue in this case was, for obvious reasons, the way in which the Father perceived his actions in removing S without the Mother’s knowledge or consent. When the Father was questioned about whether or not he considered, looking back, that the decision to remove S was still the right thing to do, the Father agreed, adding only that maybe he should have called the Mother personally to inform her of the details of the proposed holiday. The matter was adjourned at that point. When Court resumed only twenty minutes later, the Father then decided to change his evidence to say that in hindsight, he now saw removing S as irresponsible. Such a significant backflip in such a short period of time on such an essential issue created further reasons to conclude that the Father was not truthful in his evidence in giving one of those statements, and I find it is the second statement which is false given that the former was provided with the least time for the Father to reflect upon the kind of answer which would best benefit his case.
Another credit-eroding statement by the Father concerned the details placed by the Father on S’s enrolment form for the L School in Town H, S’s current school. The Father filled out this form in early July of 2011, immediately prior to S’s commencing Term 3 there. In the section of the form which required the Mother’s contact details, the Father put in his solicitor’s telephone number rather than the Mother’s telephone number. The Father gave oral evidence that this was because he did not have the Mother’s contact details with him at the time, but could not explain why he would not have simply looked up her number in his mobile phone, which, on his own evidence, he would ordinarily have with him in such a situation. In addition, the Father gave evidence that in the section requesting the Mother’s contact e-mail address, he wrote down her work e-mail from Company 1, even though he knew that she had been suspended from that employment since 20 March 2011. The Father gave oral evidence that he used that address because he believed the Mother would still have access to this e-mail address.
I find it highly unlikely that any reasonable person would believe that a person who had been suspended from a workplace for four months and criminally charged with embezzlement of funds would still have access to their e-mail address linked to that employment. This evidence is rendered even more improbable given that all of the evidence of e-mail communication between the Father and the Mother, including the vital e-mail informing the Mother of S’s departure from the UAE on 10 June 2011, were sent by the Father to the Mother’s personal “[…]” e-mail account, rather than her Company 1 account. Consequently, I find that the Father has again misled the Court and that his use of an inaccessible e-mail address and incorrect telephone number on the L School enrolment form was not the consequence of failing to remember the Mother’s details but was instead an attempt by the Father to limit the information reaching the Mother about S.

The Father was also inconsistent in his evidence regarding the Mother’s other son, C (S’s half-brother). When questioned as to why he left C’s name off the list of siblings on the L School enrolment form (S’s three other half-brothers, the children from the Father’s former marriage, were included), the Father stated that this was because he did not consider C to be part of S’s family. Evidently upon realising that this would not bode well for his case, the Father then changed his evidence only moments later to say that he does consider C to be part of the family and that leaving him off that enrolment form was not a denial that that was the case. This appears highly unlikely given that the Father also gave oral evidence that C had “stopped being his son” a year before the parties’ separation and that the Father had applied to Deed Poll in the United Kingdom to have C’s last name changed from Randle as he did not wish to share his surname with C any longer (I note that the Father “could not recall” if he did so without the Mother’s consent and that the Mother strongly denied ever consenting to such a change).
It is also notable in the judgment of the UAE Criminal Court regarding the Mother’s criminal charges that the Court mentioned the Father’s denial of C’s parentage. This was in the context that the money the Mother allegedly stole from Company 1 was used to pay C’s school fees, which Company 1 had not paid as had been the custom up to that point. The Court stated:
The Claimant [the Father] denied that he is the father of his son [C] from the Accused Woman [the Mother] – for whom the Accused Woman paid the allegedly embezzled amount as tuition fees for his school – however, the Court is not satisfied with such pleading, taking into consideration that the Accused Woman submitted copies of stamps (illegible) and documents refuting such abominable defense. Moreover, before the Sharia Court, the Claimant did not deny that he is the father of the child except in his last pleading before this Court; therefore, the Court will disregard such pleading because it is malicious and aiming for taking revenge from his divorcee.
A further area of inconsistency in the Father’s evidence arose regarding the May report of the UAE psychologist, Dr HR, on S’s state of mind. The Father stated in his oral evidence that this report was obtained at the Mother’s request, which appears consistent with his 12 July 2011 affidavit where he deposes that, “[The mother] was made aware of the interview with the psychologist…” However, this appears improbable given the Father’s further evidence that the Mother did not attend the interview process. No reasonable parent (and, as I will explain later, I consider the Mother to be a reasonable parent) would request a psychologist’s report regarding the state of mind of their child and not want to put forward their own views on the matter. That this is so is reinforced by the Father’s evidence that he attended the interview and spoke with the psychologist at length about his views on the issues affecting S. I therefore find it unlikely that the Father’s evidence regarding the Mother’s knowledge of Dr HR’s report was truthful. I prefer the Mother’s evidence that she knew nothing of this.
Another issue in the Father’s evidence was whether or not the Father had ever read parts of that psychologist’s report to S. When first questioned on the issue, the Father said that he was “certain” that he had never read parts of the psychologist’s report to S. However, when shown his own e-mail which states that he did in fact read parts of the report to S, the Father conceded that he did read some of the report to S, but only a part, rather than some parts of it. The improbability of either of those positions was reinforced when the Family Report writer, Ms B, later gave oral evidence that she was certain that the Father had told her in her interview with him that he had read parts of the psychologist’s report to S as she found that sort of conduct by a parent particularly concerning. I find that the Father did read parts of the report to S and his evidence on this before me was another example of deliberate obfuscation.
A further “reversal” of evidence occurred when the Father was questioned under cross-examination about the e-mail sent to the Mother on 10 June 2011 informing her of S’s departure. Paragraph 57 of the Father’s 12 July 2011 affidavit clearly states that the sentences, “Dear Mummy. I want all the trouble to stop. I only want to come back if things are normal and I can be happy. S,” were typed by S himself. In oral evidence, however, the Father admitted that he in fact typed these sentences some time after a conversation with S in which S said those words. The likelihood that these words were in fact typed by the Father is further reinforced by the Father’s own admission that S had significant difficulties with reading and writing at that point in time. This raises questions not only as to the Father’s credibility, but also about whether those words were actually ever said by S.
Another concerning inconsistency in the Father’s evidence relates to his evidence in response to questions about S’s statement about his mother to the Family Report writer that, “I think she’s telling them not to do what he says and the business isn’t doing so well and my dad and I are very worried about that.” The Father gave evidence that he had not imparted such information to S and that there was no reason why S would make such a statement as the business was doing well, with new centres opening in the near future. However, later in his evidence, when the cross-examination turned to his lack of financial support for the Mother, the Father gave oral evidence that the business was in trouble, that he was unsure if it would make its payments in December and that it could soon be bankrupt. Later again, the Father made oral submissions that he would be prepared to fund, for the next two years at least, four return flights to Australia each year for the Mother if she remained in the UAE as well as her accommodation during her stays in Australia for up to two months. This reflects that the Father believes he will have sufficient disposable income available to fund such travel for at least the next two years. Given that Company 1 is essentially the Father’s only source of income, this indicates that the Father believes that it will be a successful business for the foreseeable future. This inconsistency in light of different angles of questioning on the same topic indicates that the Father was, from time to time throughout his cross-examination, looking for answers that would best aid his case rather than answers which were frank and forthright.
I find that the Father’s claimed memory lapses during his evidence were so convenient as to be implausible. For example, when questioned about his failure to reveal his unilateral obtaining of a new British passport when an Order of this Court was made, at his legal representatives’ request that the Mother hand in S’s British passport to her solicitors (the only British passport said by either party to be in existence at the time), the Father claimed that he “could not remember” such an Order being made. Given that the Order was made at the request of the Father’s legal representatives and that the Father was in attendance at those proceedings, I find that far-fetched, to say the least. The Father also gave evidence that it was “news to him” that the Mother was impecunious and struggling financially, despite the vast amounts of affidavit material provided to the Father by both the Mother and her solicitors on that very topic. In fact, the Father went further and gave oral evidence that he tried his best to help the Mother financially, which is completely disingenuous given that, on his own evidence, he had terminated her employment, sued her in civil proceedings for theft and caused criminal proceedings to be taken, prohibited her from obtaining any new employment until the criminal charges were resolved and prevented her from accessing any of the funds of the business which had been the family unit’s and thus the Mother’s sole source of income.
Whilst the Father advanced a case before me to the effect that S living in Australia had advantages for S compared to him living in the UAE, that case did not sit comfortably with the content of the Father’s proposed “Settlement Agreement” dated 26 May 2001 (Exhibit 13). It was compiled shortly before the events of 10 June 2011 and by its terms the Father was proposing shared care arrangements for S predicated on the parents and S living in the UAE.
In essence, I find that the only consistent aspect of the Father’s performance as a witness was his consistent reluctance to provide frank and forthright evidence and to instead engage in deliberate obfuscation. He prevaricated over questions or propositions that he obviously thought had the potential to harm his case. He continually changed his answers from one moment to the next. Numerous inconsistencies in his evidence arose as he obviously searched for the answer that would benefit his case rather than fulfil his duty to tell the truth to this Court. He displayed a mystifying reluctance to acknowledge the plain meaning of contemporaneous documents about which he was cross-examined. His evidence, in many respects, was internally inconsistent. I therefore find the Father to be an utterly unreliable witness and I have little confidence in any evidence of the Father which is uncorroborated by external sources.

The Mother

The Mother, as a witness, by comparison with the Father, presented as a forthright and open witness whose oral evidence was not only internally consistent, but consistent to a significant degree with her written affidavit evidence.
Most important in my finding regarding the Mother’s credibility was her willingness to admit, without prompting, facts which were against her interest but which were honest accounts of particular situations. For example, in recounting the events of 22 June 2011, the Mother readily admitted that her brother, Mr Y, said words to the effect of, “Let us in or I’ll kick your fucking head in,” to the Father’s eldest son, D, despite that clearly corroborating (to a certain extent) the Father’s negative portrayal of this event. Further, the Mother also admitted that in the time she had spent with S from 16 November 2011 until the commencement of the trial, S had at times fluctuated between good behaviour and behaviour where he was arrogant, rude and oppositional and refused to listen to her. Although this again appeared to be contrary to interest, the Mother admitted this and explained the measures she was taking to address this behaviour and their varying effectiveness. The Mother also admitted to speaking tersely to S on the morning of the Family Report interviews, when she told S to, “Go on then,” when he expressed a desire to sit with his Father rather than his Mother while waiting for the interviews to begin.
I note at this juncture that I find below that the Mother’s evidence regarding any violence between the parties or involving C is not entirely accurate. However, as explained further below, the inaccuracies relate to exaggerations or omissions which do not substantially alter the picture painted by the whole of the evidence regarding the relationship between the parties and between the Father and C. Therefore, I do not find that these inaccuracies undermine in any significant way the Mother’s credibility on fundamental issues.
This is not to say that there were no inconsistencies in the Mother’s evidence. When questioned about her evidence in her affidavit material that the criminal charges placed her at risk of deportation from or imprisonment in the UAE, the Mother revealed that her legal representatives had informed her that, at worst, she was at risk of being fined, and that neither deportation nor imprisonment were possible sentences. However, this inconsistency is a minor one, and one which, unlike in the Father’s case, was not accompanied by a raft of inconsistencies and backflips, rendering the Mother’s evidence, on the whole, credible.
In stark contrast to the Father, the Mother’s presentation as a witness had the hallmarks of a person prepared to make concessions against her own interest and to place a high value on being frank, forthright and fair in giving her account. No doubt there were some respects, as I have mentioned, where the Mother appeared prone to some embellishment or exaggeration, but overall, I find the Mother to be a reliable witness in whose evidence the Court ought repose confidence.

Applicable Law and its Application to this Case

Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed at paragraph [9] of the judgment:
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.
At [13], the High Court held:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

Further confirmation of the Father’s insufficient protection of his children from adult conflicts is found in his 29 November 2011 affidavit, where he describes actually requesting that C, at this stage only ten years of age, intervene in physical conflicts between himself and the Mother:
I cannot remember the topic of the argument only that [the mother] threw a punch and hit me in the face. I stumble (sic) back. I was in shock of what had occurred and the pain. Her verbal abuse continued with young [C] stepping in between us hopeing (sic) to stop it all. [The mother] has on many occasions threatened to ‘knock my block off’”.
I later talked to [C] and thanked him for what he had done and asked that if he saw things getting out of hand again could he do the same thing so things didn’t get worse.
This clearly indicates that the Father feels that it is appropriate for children of very tender to be involved in adult conflicts. This is highly inappropriate and reveals a lack of insight into the distinction between the maturity and role of a child as opposed to another adult.
On that basis and given the overall evidence, I find that the Father is not well placed to care for S’s emotional needs in terms of S’s need to be protected from adult conflicts and decisions. On the other hand, I find that the Mother appears to have clearly grasped the importance of providing S with that protection.
In terms of S’s intellectual needs, there were disputes between the parties as to whether S received an appropriate education in the UAE. The Mother, a healthcare worker specialising in designing and delivering programs for children with developmental problems, gave evidence that she believed that S was receiving an appropriate level of education at the X School in the UAE, as well as an appropriate level of additional support in the form of speech therapy for S’s learning difficulties. The Father, on the other hand, raised concerns about the X School. Most concerningly, he raised the issue that he was concerned about the high number of children of Arabic heritage at the school on the basis that where the student body was made up of more than 20% of “Arab children”, “…the school would be infected by an attitude of laziness.” This raises questions about the Father’s ability to encourage S’s relationships with children from non-ethnic backgrounds, particularly in the context of the Father’s insistence as to the detrimental effect of S going to a school where, on his understanding, only 3-5% of the students were “Caucasian”. The Father stated that he was concerned that S’s attendance at a school with non-Caucasians was problematic as that reduced the English standard of the entire school, reducing the overall standard of education. I do not share the Father’s apparent view that a person’s skin colour has some correlation with their ability to speak English, and I am very concerned that the Father based his concern for his son’s education on such discriminatory attitudes which the Father readily shared.
Also, it was a concern that the Father, under cross-examination, revealed that although he had faith in the Mother’s qualifications as a healthcare worker who specialised in assisting children with learning difficulties, he did not accept her diagnosis (and that of the speech therapists who were treating S in the UAE) that S had a learning difficulty. I, however, do accept that the Mother’s qualifications in this area qualify her to identify such problems, and I find that she is best placed to deal with S’s needs in this area given her acceptance of his learning difficulties and desire to address them as soon as possible.
The Father attempted to argue in his affidavit material that the Mother will be unable to take care of S’s physical needs into the future as she has been criminally charged (at the Father’s request) for stealing funds from Company 1 in early 2011 (prior to S’s removal) and thus is under threat of imprisonment, deportation or a fine. However, as noted earlier, the Mother has been acquitted of all charges.
The Mother has provided evidence, which the Father accepts, that she is in the process of commencing a new business she hoped to open in January 2012 which will provide her with funds in the future to enable her to support both herself and S should an Order be made for his return to the UAE. As the criminal proceedings are now at an end, there is no continuing impediment for the Mother.
There otherwise appears to be no allegation on either side that each parent is not capable of taking care of S’s physical needs, nor that either parent has not done so while S was in their care.
Section 60CC(3)(g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any characteristics of the child that the Court thinks are relevant. I do not believe that there is much to be said about this – both parents come from similar cultural backgrounds (the Mother being of Scottish heritage and the Father, Australian) and that is the culture (albeit as an expatriate) within which S has grown up. S has no particular characteristics, aside from the learning difficulty discussed above, which might render one parent more appropriate as a primary carer than the other. The only minor issue is that the Family Consultant wanted it noted that should S return to live in the UAE, he will need an adult male role model in his life as he progresses into pubescence. However, given the frequency with which the Father deposes he can return to the UAE and the ongoing presence of S’s adult brother, D, in the UAE, I do not believe that this factor renders an Order for S’s return to the UAE not in S’s best interests.
Section 60CC(3)(i) refers to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. In this respect, I have already made findings and referred to the evidence about parental attitudes.
The major concern is what the evidence reveals about the Father. Not only did the Father send S to Australia without the Father at age eight, but S remained without either of his parents in Australia for two weeks until 24 June, when the Father arrived (excluding the events of 22 June where the Mother attempted to contact S). Upon his arrival in the country, the Father then stayed with S only until 10 August 2011, at which point he again left S in the care of his grandmother and elder brother, D, until the Father returned on approximately 12 September 2011. The Father deposes that such absences were necessary for him to manage the handover of his business affairs in the UAE so that the business could be managed from Australia. However, I find that this reveals an exceptional lack of appreciation on the Father’s part of the potential for S to be conflicted by the family breakdown. I reiterate that the Father’s unilateral actions caused S to be removed from his then-primary carer and to be taken to a new country without a parent present for a lengthy period of time when S had, until that time, only spent four holidays with his paternal grandmother in eight years.
By comparison, the Mother, despite the fact that her passport was confiscated by the UAE government due to the criminal charges laid by the Father against her, has found a way to make it to Australia not only once, but three times since S’s removal in an attempt to recover S or to participate in legal proceedings which aim at recovering S and to use those opportunities to have S spend time with her. That demonstrates commitment by the Mother to S and to her responsibilities as a parent.
At this point, although it is not a concern as such, it is relevant to note the extent to which the Father delegates the care of S in the morning to his 80 year old mother. The Father gave oral evidence that the paternal grandmother makes S’s breakfast, cleans out and packs his bag, washes his clothes, gets S ready for school, checks his diary to see what’s on at school, makes sure his homework is done and then ensures he leaves the house on time for the bus. The Father stated that the paternal grandmother enjoys doing this and he does not want to interfere with that enjoyment. The Mother also receives some assistance with S’s care (although its extent is unclear) through the employment of a maid.
The next relevant factors, ss 60CC(3)(j) and (k), are best considered together as they both refer to family violence concerns.
Unfortunately for S, there are family violence allegations by both parties against the other and also by the Father against C.
The Mother’s allegations against the Father in her affidavit filed 21 November 2011 focus primarily on the risk the Father poses to S and her own emotional well-being (addressed above). Nonetheless, the Mother does also allege in that affidavit that the Father also poses a physical threat to S, herself and C and that there has been family violence in the past. Specifically, she deposes in her 21 November 2011 affidavit that, “[The father] is Authoritarian (sic) and does use physical punishment. He rules by fear and intimidation.”
In further support of this proposition, the Mother cites, in that affidavit, a number of events in which she alleges there was family violence. However, the majority of these are not events that the Mother witnessed first hand (as she admitted under cross-examination), and are instead events which have been relayed to her by C. Given that C gave no evidence in this matter as he is only sixteen years of age, I cannot make any findings about the credibility of C’s allegations against the Father regarding these alleged instances of family violence. However, I do note that the Father’s response in his 29 November 2011 affidavit to many of these events; namely that he has, “…no recollection of such an event,” is concerning given my findings about the Father’s credibility as regards his other memory lapses. It is also important to note that the Father has admitted, as detailed above, that he is openly hostile towards C to the point that he no longer regards C as his son, which lends some support to the narrative that instances of at least emotional, if not physical, abuse has occurred between C and the Father. Nonetheless, there is also the possibility that given the evident tension which exists between C and the Father, some events may have been exaggerated in their retelling to the Mother, although, again, I can make no concluded findings of fact in this respect.
However, the Mother does depose in her 21 November 2011 affidavit to several instances of alleged family violence where she was physically present or involved. The first of these is an incident when the Mother, the Father, S, C and the Mother’s nephew were in the parties’ swimming pool and the Father allegedly smacked S’s bottom, “…quite hard…” for splashing him in the face. The Father’s response to this allegation in his 29 November 2011 affidavit is that:
I did not hit [S]. To suggest I could hit a child for anything, let alone for splashing water is ridiculous. [S] and I have always loved to play in the pool together.
This is the only evidence the Mother provides of the Father ever being violent towards S. It is also, in the context of the other events the Mother describes, a rather minor incident (although I note that this does not, by any means, amount to my condoning the use of violence in any form against children under any circumstances). Given the Father’s poor credibility, I find that this incident did occur as the Mother described, but given that it appears to have been a unique event, it does not weigh heavily in my findings as to S’s best interests.
Of more concern is the Mother’s evidence of incidents she witnessed first-hand between the Father and C. I will deal with each of these individually, as the parties provide differing accounts of the events.
The first of these is an incident in June 2010, where the Mother deposes:
In June 2010, [the father] started an argument with me one morning before school because he was concerned that [C’s] school shirt was frayed on one edge. It was neat and clean and I told [the father] that I would buy him some more but it that (sic) it would do for the time being. [The father] immediately grabbed me by the shoulders. Unfortunately, the front door was partially open and [C], who had gone outside, turned round and saw [the father] grab me. He ran back up the stairs and pushed [the father] against the wall to get him away from me and to prevent me being harmed.
The Father denies this, and instead describes the incident as having occurred as follows:
A similar event occurred again in the front door passage with [the mother] arguing about something and [C] jumping in to ‘defend’ his mother with violence and foul language. Again this big boy tried to hit me and pushing (sic) me. I pushed back and grabbed him but couldn’t contain him. I believe it was after this event that I couldn’t stand it anymore and went to see a doctor about my heart. …
This is inconsistent with the Father’s further reference to this event where the Father states that, “[C] saw me grab [the mother] to stop her hitting me a second time.” There is no reference in the Father’s initial description of events to the mother striking him in any manner. The Father also admits to further violence than the Mother accuses him of, conceding that he, “…pushed back and grabbed,” C. Given the Father’s poor credibility, including where C is concerned, I find that this event did occur as the Mother deposes. This is particularly so in light of the Father’s evidence, noted earlier, that he had requested in 2005 that C intervene in arguments, physical or otherwise, between the Father and the Mother. Given that earlier invitation, I find that it is highly likely that C did do so in the 2010 incident. I further find that C’s stepping in during the abovementioned incident was in protection of his mother.
Of particular concern is the evidence of N, one of the Father’s sons from his first marriage, which indicates that the Father may have a history of reacting violently in stressful situations. As already mentioned, N is not estranged from his father and the Father did not contradict any of the matters deposed to in N’s affidavit during cross examination. N deposes that when he informed his mother that the Father wanted his passport because they were moving to UAE City 1, despite the Father telling N that he was not allowed to do so under any circumstances, the Father reacted as follows:
When my father found out that I had told my mother about the move he reacted aggressively using the closes (sic) thing he could find whish (sic) happened to be a Steven King hard back to hit me. Although this violence was short lived, later on in the evening my father told me that he was sorry for what he had done and that he still loved me, even though I had betrayed him.
N further deposes that:
After we had moved to [UAE City 1] thing (sic) became very tense. We had not (sic) furniture because it had not yet arrived. Dad was not satisfied with the conditions of his employment and my brothers and I especially my eldest brother [D] were not exactly getting along with our new stepmother. None of us knew anybody in the country except each other. A (sic) remember [D] and my father argued many times and on several occasions these argument (sic) would become violent.
Both of these uncontested pieces of evidence reveal that the Father has a tendency to become physically aggressive when challenged or when angered, and this lends credibility to the Mother’s accusations of the Father being violent. I find that the Father has been violent towards C in the manner described by the Mother.
The Father accuses the Mother of domestic violence in return. For her part, despite denying being physically violent towards the Father, the Mother admits to two instances, “…that involved [the Mother] touching [the Father] or his belongings…”
The first is an event where the Mother threw a carton of milk over the Father in response to his saying that she didn’t work hard enough. The Father simply denies that this occurred. Given that this favours the Father’s case that the Mother is aggressive and poses a threat to S, I find this denial unusual. However, given that the Mother admitted this event of her own volition in her affidavit evidence, I find that it did occur. Nonetheless, it is not an incident involving such violence as to weigh heavily in my considerations as to the household in which S will be least likely to be exposed to family violence.
The second is an incident involving an argument between the Mother and the Father about the Father providing money to the Mother to buy a new horse. The Mother deposes:
I wanted to buy a horse in June 2010 and asked [the father] if he would lend me the 30,000 AED to pay for it, with me to repay him when I sold my existing horse. He agreed and therefore I contacted the owner and we confirmed the sale. The night before [the father] was going to give me the money we had a row about a topic which I can not (sic) recall. The next morning when I asked [the father] for the money he told me that he was not going to give it to me because I had argued with him. I had already made a commitment to the owner of the horse. When he was about to leave the house I stood in front of the door and politely asked him for the money. He refused and then went to leave by the back doors. I pulled his small briefcase that he held under his arm and some papers fell to the ground. I repeated my request for the money and he pushed me into the corner between two walls where I fell backwards. [C] heard the noise and came rushing downstairs and tried to calm and reason with [the father]. [C] said a number of times, “[The father’s first name], let me speak to you”. [The father] ignored him and continued yelling at both of us. He grabbed [C] around the throat and proceeded to strangle him, still yelling. [C] eventually shouted “Shut the fuck up!”, grabbed [the father] by the collar and pushed him against the wall. He then pushed [the father] out the front door yelling, “Get the fuck out!”. [C] was distressed following this incident and it took me some time to comfort him.
The Father’s account of this incident is quite different. He deposes in his 29 November 2011 affidavit that it occurred as follows:
June 17, 2010. [The mother] demanded money from me in order to buy a horse while I was leaving the house to go to work. I refused to lend her company money to buy a second horse. [The mother] blocked the front door to prevent me leaving. My hands were full with my computer and coat. I tried to leave by the back door but [the mother] pulled me from behind and I was knocked to the ground. [C] suddenly appeared standing over me, laughing. [C] made threats of violence using foul language.
Given the Father’s admitted dislike of C and his lack of credibility in relation to events involving C, I find that this event occurred largely as the Mother describes, and that while she did forcibly remove his briefcase, there was no significant physical aggression on her part. I also find that C’s, “…threats of violence using foul language,” were in the context of him attempting to protect against what he saw (rightly or wrongly) as an attack on his mother.
The Father’s other accusations against the Mother in terms of her being physically violent towards him appear to be largely exaggerated. In particular, the Father, in his 12 July 2011 affidavit, describes the 22 June 2011 incident as an “attack” on his mother and something which could have been, “…an extremely violent physical situation.” None of the evidence presented before me indicated that there was any form of physical altercation between the parties involved in that event. It was admitted by the Mother that Mr Y, the Mother’s brother, swore at D in an aggressive way, but that is to be seen in the context of the paternal grandmother, D and the Father acting (as found above) deliberately to hide the Mother’s child from her.

Although the Father gave oral evidence that he was “surprised” that the Mother was upset on 22 June, I find that it is perfectly understandable in those circumstances, and that the Mother’s desperation to find S could not be termed as an “attack” on anyone. The fact that the paternal grandmother sought an Apprehended Violence Order against the Mother over this event I think was, given its context, unwarranted and should not weigh against the Mother.
The Father also refers to an incident where he and the Mother were fighting over whether to keep C’s dog, which the Father accused of having killed S’s guinea pig. The Father deposes that the Mother, “…became violent, pushing [the Father] further into the shed.” Given the Father’s exaggerations of the 22 June 2011 event and his otherwise poor credibility, I find that although there may have been physical contact between the parties, it was not contact which would meet the definition of family violence as it is defined in s 4 of the Act.
The Father describes a further incident in January 2011 when the parties were arguing and were physically quite close to each other. The Father deposes that he laughed and commented, “We haven’t been this close since the last time we had sex,” and that he was met with a slap across the face from the Mother. This appears to be a likely series of events and a reaction to such a statement in the heat of the moment. I find that it probably occurred. I doubt, however, that it was so serious that, as the Father deposes, “[The Father] staggered backward and held up arms (sic) against another possible blow.” This latter aspect seems more likely to be another exaggeration by the Father of a situation where violence did occur, but only in the context of the Father’s provocation and not in such a manner that the Father could seriously fear for his safety.
The Father’s other accusations, namely that there is, “…a history of violence and abuse by [the mother] towards [the Father],” and that, “[The mother] is six foot tall and has a history of intimidating me and my staff,” are vague and are not supported by clear evidence of specific events other than those referred to above.
By far the most concerning evidence of family violence is the Father’s numerous accusations regarding C. The Father gives evidence in his 12 July 2011 affidavit that C has, “trouble with anger management” and “explodes with rage” to the extent that C had to quit his football team as he was becoming too violent on the field. This is in stark contrast to the Family Consultant’s description of C in her oral evidence as, “…a quietly spoken, fairly serious young man,” who took on a, “…generous…” and, “…big brother…” role in relation to S.
This is also in contrast to the Mother’s description of C as a young man who is mature for his age. The Mother also directly contradicts the Father’s evidence regarding C’s departure from his football team, explaining that C left the football team because their game times clashed with the times for Sport 2, another sport in which C was involved. Given the Father’s evident hostility towards C and his lack of credibility, particularly on anything relating to C, I prefer the Mother’s evidence.
The Father also fails to contextualise many of the incidents in which he states C has been violent towards him. On his own evidence, he requested, in 2005 (in my view highly inappropriately), that C (then about 10 years old) intervene in physical and verbal altercations between the Father and the Mother. The fact that C did so in later incidents is therefore not surprising. In fact, in the majority of the incidents the Father details, C is actually described by the Father as defending his mother by intervening in disputes between the parties. I find that this does C credit, rather than evidencing any tendency towards violence. Furthermore, given the Father’s unabashed hostility towards C, I do not hold the view that other physical encounters between C and the Father are evidence that C would ever be violent towards S or whilst S was in the Mother’s home if the Father were not present. Moreover, the fact that the Father made a formal complaint to the police about C in a situation in which the Father admits C was intervening in a fight between the Father and the Mother (as the Father had requested C do in 2005), speaks volumes against the Father, and not against C.
The Father also makes accusations that C was physically violent towards the Father’s three sons from his first marriage when they lived with the Father, the Mother, C and S in UAE City 1 and that, “[N], in particular, felt that the situation was unfair and had several tearful and angry sessions over [C].” However, N provides no evidence in his affidavit material of fighting with, or being afraid of, C. He deposes to violence by the Father (from whom he is not estranged), and mentions he did not get along with the Mother, but mentions nothing in relation to C. The Father cross-examined N but did not raise this or put any such propositions to N. This confirms that the Father, in his hostility towards C, has presented a skewed and biased view of C in order to present him as a violent child when that is not in fact the case.
In summary, I find that the common factor in all of the claims of family violence, whether by the Mother or the Father, is the Father. There is very little, if any, evidence of the Mother or C being violent in a situation which did not involve the Father, whereas there is evidence by the Father’s own son that the Father has been physically violent towards his own children without the Mother or C being present. Therefore, I find that should S be ordered to return to the UAE and should the Father remain in Australia as he deposes to desiring to do, there is no risk that S will be exposed to family violence in the Mother’s household. However, I find that there is a risk, albeit a small one (given the lack of evidence of any previous violence by the Father towards S), that S may witness or experience family violence while living in the Father’s household, should it be ordered that S remain living in Australia with his father.
The next factor which I am required to consider is whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. I consider that in this case, as in most, that would be the most preferable situation, and that such a situation could be achieved by making Orders consistent with the Sharia Court’s orders that S be returned to his mother’s primary care to avoid ongoing litigation in that Court regarding parenting matters.
The final factor is the catch all, “any other fact or circumstance that the court thinks is relevant.” It is at this point that I turn to the issue of whether any Orders made in Australia will be enforceable in the UAE.
The previous evidence of the Sharia Law expert in this matter, Ms T, was not quite clear on this point, and thus additional evidence was obtained. Unfortunately, due to public holidays in the UAE this could not be done until after the completion of the trial, and so I gave the parties leave to file additional written submissions on the additional evidence provided by Ms T.
The additional evidence was essentially to the effect that there are two ways of enforcing an Order of this Court in the UAE. The first is to obtain a “mirror order” by way of an “attestation case”. However, Ms T deposed that a mirror order can only be obtained where the local Sharia Courts do not have jurisdiction. Given that the Sharia Courts have already made Orders in this matter and thus clearly do have jurisdiction, and that Ms T also deposes that, in any event, the giving of such an Order is at the UAE judge’s absolute discretion, this will not enable the enforcement of any Orders I make in the UAE.
However, Ms T deposes to a second manner in which an Australian Order can be enforced, namely through the parties making what is essentially a consent order. As long as the agreement does not contradict elements of Sharia Law, Ms T deposes that the Order will be made into a binding and enforceable Order of the UAE courts.
The Father contends in his written submissions that this second method will not be effective in enforcing an Order of this Court if that Order contradicts any of the following concepts of “public order”:
e) Not interfering with the rights of the guardian (father) of the child;
f)Ensuring that the custodian (mother) has not been convicted of any dishonourable crime;
g)Where the mother was not able to be the custodian, then the mother’s mother would become the custodian;
h)It is the duty of the father as his guardian to handle the child’s affairs, including his education;
i)The mother may not take the child outside of the state without the written permission of the father;
j)The mother may not move away from the father’s residence to such a distance as to cause him unusual hardship or costs;
k)The mother can take the child for travel with the written consent of the father;
l)Where the mother moves to a country where it is difficult for the child’s guardian father to exercise his duties;
m)The male child in the care of the custodian mother is under the age eleven (11) years;
n)The guardian is to keep the child’s passport except for approved travel by the custodian.
I accept that these requirements may prevent the enforcement of an Order made by this Court in the UAE. However, I am satisfied by the Mother’s assurances, as a credible witness, that she would abide by any Orders that I make, regardless of her other legal options in the UAE. The Mother is pursuing property proceedings in this Court. I also note that given the Father’s deposed plans to continue to reside in Australia permanently and the fact that the property issues between the parties will be settled in this Court over the coming months, injunctions against continuing or pursuing any further parenting matters in the Sharia Courts in the UAE and requiring that any existing cases be ceased immediately should also maximise the prospect that the Orders of this Court, and only those Orders, govern S’s residence and care into the future.
I found the Mother to be genuine in her approach that S needs to have a relationship with his father and, plainly enough, the Mother supported that prior to the Father’s abduction of S on 10 June 2011 notwithstanding the acrimony between the parents which existed. I accept that the Mother is genuine in her assurances that she will abide by Orders made by this Court.

Section 60CC(4) – fulfilment of parental responsibilities

This section has been adequately covered by the consideration of the s 60CC(3) issues above. I find that the Father has shown an inability to facilitate the Mother participating in long term decisions about S since 10 June 2011 (namely his country of residence and his schooling) and that the Father’s removal of S and subsequent concealment of S’s whereabouts shows a failure to facilitate the Mother spending time with S. However, it also appears that the Mother has been able to communicate with S by phone and by Skype almost daily since the initial court proceedings in July 2011, and that there have been two successful periods of time in which the Mother has been able to spend time with S since his removal pursuant to Orders made.
I find that the Father’s long absences from Australia during S’s time in this country reflects a failure on the Father’s part to take the opportunity to spend time with S in a situation where the Father was simultaneously denying the Mother the opportunity to spend time with S. This does not reflect well on the Father’s attitudes towards his responsibilities as a parent.

Section 60CC(2) – primary considerations

I now turn to consider the primary considerations. Section 60CC(2)(b) has been adequately addressed above in my discussion of the family violence issues in this matter.
Section 60CC(2)(a) requires a little further explanation. The need for a child to have a meaningful relationship with both parents is one of the central focuses of the Act. There cannot be any doubt that there is already established between S and each of his parents a meaningful relationship within the meaning of that concept as explained in Sigley & Evor [2011] Fam CAFC 22. In this case, the tyranny of distance would appear, prima facie, to make this difficult, despite technological devices such as Skype which enable children to communicate with their parents in a virtual “face to face” environment over long distances. However, here, the Father has given oral evidence that he will be able to fund return trips to the UAE every two and a half months in addition to four return trips for the Mother each year. If all of those trips were taken instead by the Father, this amounts to a capacity, on the Father’s part, to make nine return trips to the UAE each year. On the other hand, the Mother deposes that, should S be ordered to live with the Father in Australia, she will only be able to take the four trips to Australia that the Father funds as she is currently impecunious due to her lack of income and the costs she has incurred through these and other legal proceedings.
This evidence regarding the parties’ respective abilities to visit the other party’s country of residence is of great import as a meaningful relationship between a child and a parent is likely to be best facilitated by direct face to face contact and time. Consequently, this factor weighs heavily in favour of S’s return to the UAE and to the care of his mother as, in that situation, he will be able to spend significant time with his mother as well as at least nine blocks of time with his father each year plus holiday time. This is a far better situation than if S were to live with the Father and only to see the Mother four times per year plus holiday time. I note that this was the Independent Children’s Lawyer’s position at the conclusion of the trial.
I also find that a meaningful relationship between S and his parents is best promoted in an environment where S is not exposed to constant attempts (intentional or otherwise) by one parent to alienate S from the other parent. Given the evidence and findings I have made above, I further find that the Mother is best able to protect S from the dispute between the Mother and the Father and to promote S’s relationship with his father, whereas the Father has shown himself incapable of doing the same as regards S’s relationship with his mother.

Application of Presumptions

I consider my conclusions as to S’s best interests in light of the presumptions set out in Part VII of the Act. The first of these is contained in s 61DA, which requires this Court to apply a presumption that it is in S’s best interests for the Mother and the Father to have equal shared parental responsibility unless there is evidence of a parent engaging in abuse or family violence. Here, there is evidence of the Father engaging in family violence and, albeit to a small extent, evidence of some family violence by the Mother against the Father. In such a situation, I decline to apply the presumption in this case. Even if there were no family violence, I would nonetheless find that the presumption of equal shared parental responsibility was rebutted because it would be contrary to S’s best interests. In this case, there is such animosity and entrenched conflict between the parties, especially over major decisions such as S’s country of residence and his schooling, that I find that it is unlikely that the parents will be able to communicate effectively or for S’s benefit over major long term issues and that the conflict S is exposed to will be best reduced by sole parental responsibility being assumed by the parent with whom S is primarily living. The Independent Children’s Lawyer contended for this in final submissions.
There is thus no need to consider the presumptions for equal shared time or substantial and significant time. However, even were that not the case, given the distance between the parties and their stated intentions of remaining in their current countries of residence no matter what Order is made regarding S, I find that, upon consideration of the reality of the situation and the factors identified in s 65DAA(5) of the Act, it is not reasonably practicable to make Orders for equal shared or substantial and significant time.

Conclusion as to Best Interests and Outcome

In a situation such as this where the presumptions referred to above do not apply, I am required to make parenting Orders which are in S’s best interests.
I find that the parenting Orders that are in S’s best interests include Orders that S be returned immediately to the United Arab Emirates and to his mother’s care, with the Mother to have sole parental responsibility. This is for a number of key reasons, including that the Father has shown an inability to facilitate S’s relationship with his mother, an inability to protect S from the parenting dispute in any way (with the Father in fact actively involving S); an inability to promote S’s relationship with his half-brother, C; his ability to regularly visit the UAE to spend time with S and his motivation to visit the UAE to pursue his business interests there. The Mother, by contrast, has made every attempt to protect S from the parental conflict; has made every attempt to spend time with and communicate with S (on her evidence, on a daily basis since July 2011); has promoted S’s relationship with the Father even in the face of the Father impoverishing and criminally charging her; and has demonstrated that she is an exceptionally child-focussed parent. The Mother also gave evidence that, even if she were to receive sole parental responsibility, she would still attempt to consult the Father on all major long-term issues relating to S, except for schooling (on which the parties have never been able to agree).
Given my findings as to the best interests considerations, this is not a finely balanced case. Weighing those considerations overwhelmingly favours parenting Orders that see S returned to the primary care of the Mother as soon as possible. Indeed, on my findings, there are risks to S’s emotional and psychological wellbeing and his relationship with his mother if there is a continuation of the position engineered by the Father of S being removed from his home in the UAE and his mother’s primary care and being exposed to the Father’s negative attitudes of the Mother.
I make Orders as set out at the commencement of these reasons.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 February 2012.

Associate:

Date: 20 February 2012

[2012] FamCA 59

20 February 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies