Randle & Randle
[2011] FamCA 830
•27 September 2011
FAMILY COURT OF AUSTRALIA
| RANDLE & RANDLE | [2011] FamCA 830 |
| FAMILY LAW - CHILDREN - Jurisdiction of Family Court - Whether applicable test forum non conveniens or best interests FAMILY LAW - CHILDREN – Welfare jurisdiction – Whether power and discretion to make summary order for return of child to non-Convention country ought be exercised |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Hague Convention on the Civil Aspects of International Child Abduction |
| Agar v Hyde (2000) 201 CLR 552 B v B (2003) 31 Fam LR 7 Bank of Tokyo Ltd v Karoon [1987] AC 45 CSR Ltd v Cigna (1997) 189 CLR 345 De L v Director-General, New South Wales Dept of Community Services (1996) FLC 92-706 EJK v TSL (2006) 35 Fam LR 559 Goode & Goode (2006) FLC 93-286 In Re L (Minors) [1974] 1 WLR 250 Karim v Khalid (2007) 38 Fam LR 300 Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 Pagliotti & Hartner (2009) FLC 93-393 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Zabini & Zabini [2010] FamCAFC 10 ZP v PS (1994) 181 CLR 639 |
| APPLICANT: | Ms Randle |
| RESPONDENT: | Mr Randle |
| FILE NUMBER: | BRC | 11866 | of | 2010 |
| DATE REASONS DELIVERED: | 27 October 2011 |
DATE ORDERS DELIVERED: 27 September 2011
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 15 July, 8 August, 2 September and 27 September 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McMillan SC |
| SOLICITOR FOR THE APPLICANT: | Ms Kerrie-Anne Craig of Piper Craig Henry Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr T North SC |
| SOLICITOR FOR THE RESPONDENT: | Ms Rachael Murray of Hopgood Ganim Lawyers |
Orders
The application of Ms Randle for a summary order for the return of S Randle to the United Arab Emirates filed 30 June 2011 is dismissed.
That pursuant to s 68L(2), the interests of the child Master S Randle, born … April 2003 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child's interests.
That forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.
That within forty-eight (48) hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.
A report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services.
For the purposes of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issue of S’s residence.
The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
The parties shall attend (in the case of the Mother, by telephone if necessary) and ensure that the child, S Randle, attend all necessary appointments for the preparation of the Family Report.
Costs of and incidental to this application are reserved to the trial judge.
This matter is adjourned to a trial to be heard for four days commencing 29 November 2011 before the Honourable Justice Kent.
This matter is adjourned to the Registry for trial directions on a date to be fixed.
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
On the last of the four (4) dates partial interim hearings of this matter have occurred (18 July, 8 August, 2 September and 27 September 2011) I determined that I would not make a summary order for return of the child S to the United Arab Emirates but would instead provide early trial dates.
So as to secure an early trial, I set the matter down for a four (4) day trial to commence before me on 29 November 2011 and made an order pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”) for the subject child’s interests to be independently represented. I indicated that I would provide my reasons in written form. These are those reasons.
These proceedings arise because S Randle, (“S”) born in April 2003 in the United Arab Emirates (“UAE”), and who has lived in the UAE with his parents over the years since his birth, was removed by his father to Australia on 10 June 2011. Thus, S was removed from the UAE and from the then primary care of his mother without her knowledge or consent, resulting in her current application for his return to both the UAE and her care.
The preliminary determination for the Court was whether it was in S’s best interests to make a summary order for S’s return to the UAE to allow parenting arrangements to be determined in that country, or whether this Court should exercise jurisdiction and embark upon a full investigation in the usual way to determine parenting orders for S.
The complicating feature of this case is the number of international factors involved. The Mother, Ms Randle, born in 1965 and thus aged 46 years, is a British citizen who was born in Scotland (paragraph 12 of her affidavit filed 30 June 2011). The Father, Mr Randle, born in 1952 and thus aged 58 years, is an Australian citizen (paragraph 1 of his affidavit filed 12 July 2011). The parties met in Brunei Darussalam and lived there for two years before being married in Australia in June 2000. The parties then moved to City 1 in the United Arab Emirates (“UAE”) on 5 August 2000. The only child of the marriage (the parties’ children from previous marriages are not part of the present dispute), S, was born in the UAE in April 2003. S holds both Australian and British passports and has historically held a visa to reside in the United Arab Emirates under his father’s sponsorship (paragraph 4 of the Father’s affidavit filed 12 July 2011).
Neither the parties nor S are UAE nationals.
This plethora of international factors makes any decision involving consideration of the connections S has with a particular country rather complex.
Brief Background
The history of this matter is, despite the complicated international context, relatively simple.
In 2010, Mr and Mrs Randle separated and, despite the parties still residing in the United Arab Emirates, a final Divorce Order was made with the agreement of both parties by the Federal Magistrates Court of Australia in March 2011. After their separation, the parties initially continued to live under the same roof until the Father’s departure from the matrimonial home in December 2010. The parties dispute the arrangements which were agreed post-physical separation. The Father deposes in his affidavit filed 12 July 2011 that he and the Mother agreed that S would reside with each party for three months respectively, and that whilst the child was with the Mother, the Father would have access every second weekend from Thursday after school to Saturday evening and on Tuesday evenings for sport practice. By contrast, the Mother deposes (at paragraph 22 of her affidavit filed 30 June 2011) that she was not agreeable with such an arrangement, and instead wanted S to live with her permanently, although it is unclear from her affidavit evidence whether she was otherwise agreeable to the existing regime of contact between the Father and S continuing. In the event, it seems not to be in contention that following December 2010 (when physical separation occurred), S lived mainly with the Mother. I note at this point that whilst the Father advanced a case before me which included criticisms of the Mother’s parenting (disputed by the Mother) it is the Father’s case that he consented to S being in the Mother’s primary care when the parties physically separated and it is not contested that this is what in fact occurred until June 2011 when the Father acted in the manner described below.
The Mother commenced proceedings in March 2011 in the Sharia (Islamic) Courts in the United Arab Emirates for the equivalent of a parenting order regarding S. The Father, at paragraph 20 of his affidavit filed 12 July 2011, deposes to having no knowledge that such proceedings had been commenced.
The Father further deposes at paragraph 19 of the same affidavit that the parties agreed that their traditional arrangement of S spending time with their extended families in both Scotland and Australia respectively in different holiday periods would continue post-separation, with a visit to Scotland to occur during the 2010/2011 Christmas period, and a visit to Australia to occur in the 2011 July holiday period. The parties also both depose that S remained in the primary care of his Mother and spent time with the Father each Tuesday for sport practice and each alternate weekend.
This arrangement continued for several months without upset until, as the Father deposes in his affidavit filed 12 July 2011, he, “…decided it would be best if [S] commenced his holidays [in Australia with the Father’s family] two (2) weeks earlier than as planned.” The Father says that he alerted the Mother to this change of arrangements via text message and e-mail on 10 June 2011 before placing S on a plane to Australia that same day. S was accompanied by the Father’s son from a previous marriage, D (the Mother deposes at paragraph 32 of her affidavit filed 30 June 2011 that as the Father’s passport was held by the Court in the United Arab Emirates, he was not at that time able to leave the country). For the Father to suggest that this was simply bringing forward a planned holiday visit does not sit well with the preponderance of evidence, which is supportive of a conclusion that what has in fact occurred (that is, S remaining in Australia) was at all material times the Father’s objective.
At paragraph 29 of the same affidavit, the Mother deposes to being alerted to this situation by a text message from the Father of 10 June 2011 asking her to check her e-mail, which contained a message stating that the Father would be taking S on holidays two weeks earlier than agreed. There does not appear to be any real dispute between the parties that this lack of advance notice means that S was essentially removed from the United Arab Emirates to Australia without the Mother’s prior knowledge, and certainly without her consent.
The Mother then filed an Initiating Application in this Court on 30 June 2011 requesting the immediate return of S to her care. This was followed by an Amended Initiating Application, filed by leave on 18 July 2011, which not only requested the return of S to the Mother’s care in the United Arab Emirates; but also the stay of the proceedings on foot in Australia pending the conclusion of the Sharia Court proceedings in the United Arab Emirates (the appeal period, on the Mother’s evidence, had not then yet expired); and the enforcement of the orders made by that Court as they presently stand. The Father filed a Response to Initiating Application on 12 July 2011 seeking sole residence of and sole parental responsibility regarding S and that the proceedings in the Sharia Court in the United Arab Emirates be stayed. On 27 July 2011, an Amended Response was filed by the Father seeking an anti-suit injunction in respect of the Sharia Court proceedings instead of an order staying those proceedings (the latter being an Order this Court has no power to make).
These interim proceedings thus essentially concern the issue of where the substantial parenting arrangements concerning S are to be heard; whether in the United Arab Emirates under the ruling of the Sharia Court, or in the Family Court of Australia under Australian family law.
Aside from the family law proceedings in the Sharia Court in the UAE, there are other proceedings underway in the UAE. The Mother is the subject of criminal proceedings brought by the company known as Company 1 with which both parties were involved in the UAE. In summary, the company is said to have made a criminal complaint against the Mother for alleged misappropriation of funds. It is the Mother’s case that this is at the instigation of the Father, who is, in truth, the controlling mind and will of the company. For his part, the Father asserts that the company is owned independently of him by a national of the UAE as is apparently required by the law of the UAE in respect of company ownership. In any event, those criminal proceedings remain on foot.
There is also a civil complaint and proceedings brought by the Mother against that company, described generally as a labour law dispute.
History of these Proceedings
A relatively detailed history of the parties’ (and in particular the Mother’s) various applications, proposals and submissions in this case is necessary not only because changes were made in that respect throughout the hearing of this matter, but also because, as will become evident below, divining the exact proposals put forward by the Mother is of importance in deciding this matter.
This case was initially urgently listed as a duty list matter on 18 July 2011. At that point, the Mother’s proposals as set out in her Initiating Application filed 30 June 2011 were for interim orders as follows:
1. That this Application proceed and be heard on an urgent basis.
2. That all time necessary for the hearing of this matter be abridged.
3. That the Marshal of the Court, all officers of the Australian Federal police and all state and territory police officers are requested to find and recover the child [S Randle] born […] April 2003 (the child) and deliver the child to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
4. That pursuant to Section 67ZD of the Family Law Act 1975 (Cth) the Australian Federal Police are authorised and directed with such assistance as they may require, and if necessary by force, to locate and deliver up to the mother the Australian Passport for the child [S Randle] born on […] April 2003.
5. That until further order, the child live with the mother.
6. That until further order, the father be restrained and an injunction issue restraining him from removing the child from the mother’s care or travelling with the child more than 100km from the child’s home in [City 2], United Arab Emirates, without the mother’s written consent.
7. That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) the mother be at liberty to remove the child from the Commonwealth of Australia.
8. That the parties undertake independent psychiatric assessments.
9. That the parties and [S] attend upon a family report writer for the purposes of preparation of a family report.
10. That the father pay the mother’s costs of an [sic] incidental to this application on an indemnity basis.
11. Such further or other order as this Honourable Court deems appropriate.
However, upon appearing on 18 July 2011, the Mother’s Counsel, Ms McMillan SC, sought and obtained leave to file an Amended Initiating Application. It proposed the following interim orders:
1. That this Application proceed and be heard on an urgent basis.
2. That all time necessary for the hearing of this matter be abridged.
3. That forthwith upon the making of this order the father deliver up to the mother the child [S Randle] born […] April 2003 (the child).
4. That in the event that the father does not deliver the child to the mother by 6:00pm on Monday 18 July 2011 then the Marshal of the Court, all officers of the Australia Federal Police and all state and territory police officers are requested to find and recover the child [S Randle] born […] April 2003 (the child) and deliver the child to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
5. That the father forthwith deliver up to the mother the Australian passport for the child and failing the Respondent’s compliance with this order by 6:00pm on Monday 18 July 2011, pursuant to Section 67ZD of the Family Law Act 1975 (Cth) the Australian Federal Police are authorised and directed with such assistance as they require, and if necessary by force, to locate and deliver up to the mother the Australian Passport for the child.
6. That until further order, the child live with the mother.
7. That the father do all necessary acts and sign all necessary documents so as to cause the childs’ [sic] residency visa for the UAE to be extended.
8. That until further order, the father be restrained and an injunction issue restraining him from removing the child from the mother’s care of travelling with the child more than 100km from the child’s home in [City 2], United Arab Emirates, without the mother’s written consent.
9. That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) the mother be at liberty to remove the child from the Commonwealth of Australia.
10. That these proceedings be stayed pending the conclusion of the Sharia Court proceedings.
11. That the Respondent pay the Applicant’s costs of an [sic] incidental to this application on an indemnity basis.
12. Such further order as this Honourable Court deems appropriate.
The inclusion of the Order sought in paragraph 10 was the first indication by the Mother that an objection to jurisdiction was being made (in the form of an application for a stay of proceedings).
Matters were further complicated by the Applicant Mother’s Outline of Submissions, also filed by leave on 18 July 2011. These state at paragraph 2.17:
Given this the mother has in essence sought:
(a)That in effect the orders of the Sharia Court be enforced
(b)That she make a conditional appearance
(c)That she be permitted to take [S] back to his home in the UAE
(d)That further proceedings be dismissed or stayed in Australia
These submissions conflict with the Amended Initiating Application filed the same day, which did not seek an order for enforcement of the outcome of the Sharia Court proceedings.
Ms McMillan SC did not explain how the Mother proposed to make a conditional appearance part way through proceedings she herself had commenced (an issue discussed further below). Moreover, interim parenting orders were made by the Court that day at the request of both parties.
The Father applied for an adjournment on 18 July 2011 on the basis that this was the first mention by the Mother of any objection to jurisdiction on the basis of a stay and the principles of forum non conveniens. The adjournment was not opposed. The matter was adjourned for the Mother’s forum non conveniens argument to be heard on 8 August 2011.
At the outset of the hearing on 8 August 2011, having in the interim read the Mother’s submissions filed on 18 July 2011, I raised with the Mother’s Counsel the issue of whether the matter was to be determined according to the common law principles of forum non conveniens or whether, in fact, the appropriate test to apply was the best interests test. Ms McMillan SC confirmed that the best interests test was applicable to this case.
However, Ms McMillan then handed up submissions which, although said to replace the written submissions handed up at the 18 July 2011 hearing, again contained paragraph 2.17 in the same terms as set out above at paragraph 22.
Of course, this paragraph, in requesting a stay of proceedings, directly contradicts the concession that the common law principles of forum non conveniens were not applicable to this case.
Matters were further complicated by the following aspect of Ms McMillan’s written submissions:
6. Orders sought by the mother
6.1 The mother seeks the following amended interim orders:
(a) That this Application proceed and be heard on an urgent basis.
(b) That all time necessary for the hearing of this matter be abridged.
(c) That the father forthwith upon the making of this order deliver up to the mother the child [S Randle] born […] April 2003 (the child).
(d) That in the event the father does not deliver the child to the mother by 6:00pm on Monday 18 July 2011 then the marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover the child [S Randle] born […] April 2003 (the child) and deliver the child to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
(e) That the father forthwith deliver up to the mother the Australian passport for the child and failing the Respondent’s compliance with this order by 6:00pm on Monday 18 July 2011, pursuant to section 67ZD of the Family Law Act 1975 (Cth) the Australian Federal Police are authorised and directed with such assistance as they require, and if necessary by force, to locate and deliver up to the mother the Australian Passport for the child [S Randle];
(f) That until further order, the child live with the mother.
(g) That until further order, the father be restrained and an injunction issue restraining him from removing the child from the mother’s care or travelling with the child more than 100km from the child’s home in [City 2], United Arab Emirates, without the mother’s written consent.
(h) That pursuant to section 65Y(2) of the Family Law Act (Cth) the mother be at liberty to remove the child from the Commonwealth of Australia.
(i) That these proceedings be stayed until the conclusion of the Sharia Court proceedings.
(j) That the Respondent pay the Applicant’s costs of an [sic] incidental to this application on an indemnity basis.
(k) Such further or other order as this Honourable Court deems appropriate.
Again, despite paragraph 2.17 of the written submissions, no order for the enforcement of the Sharia Court orders was sought in the amended application. Also, the submission concerning a stay of the Australian proceedings again remained despite Ms McMillan’s concession that the principles of forum non conveniens were not the appropriate means by which to decide this dispute. Further confusion was created by the inclusion of other paragraphs in those submissions directed to best interest considerations.
The Father’s submissions, filed by leave by Mr North SC on 8 August 2011, focussed on the best interests test and the question of whether a summary or full hearing was appropriate in this matter.
Ms McMillan’s response to my question regarding the appropriate test at the outset of the 27 September hearing confirmed that, despite the confusion and apparent contradiction just referred to, the best interest test was, indeed, applicable on the Mother’s view.
One of the Father’s complaints at the hearing on 8 August 2011 was that (as had occurred on 18 July 2011) the Mother had delivered affidavit material immediately prior to the hearing and the Father had thus been given no sufficient opportunity to respond to that material.
At the conclusion of the 8 August hearing, I specifically asked Mr North SC, Counsel for the Father, as to whether he was suggesting in his submissions that the Court did not have enough material to deal with this matter summarily, or whether the Father had insufficient opportunity to respond to the then recently filed material. The exchange which followed that question proceeded as follows:
…
MR NORTH: No, no. Well, your Honour, we would like an opportunity to respond to that material.
HIS HONOUR: That material. Apart from that, would there be anything else? You would want to make submissions further or not?
MR NORTH: Your Honour, the extent to which I might want to make further submissions may depend on the instructions I receive in response.
HIS HONOUR. Alright.
MR NORTH: I must confess the submissions I’ve made so far have been fulsome.
HIS HONOUR: Well, they’re pretty fulsome. So it would be really just whether there’s any change by reason of your further evidence and whether you needed to make further submissions isn’t it?
MR NORTH: Yes, Your Honour.
…
The 8 August hearing was adjourned to be continued on 2 September 2011 due to the late filing of affidavit material by the Mother to which the Father wanted an opportunity to respond (i.e. the “material” mentioned in the exchange extracted above).
As Mr North SC was unavailable at the September 2 hearing, the Father’s solicitor, Ms Craig, appeared. During that hearing, I raised an apparent conflict between Mr North SC’s oral submissions on 8 August 2011 (as extracted above) and his written submissions filed 18 August 2011, which referred to the Court’s decision as to whether to “embark” on a summary hearing. This appeared inconsistent with Mr North’s concession of 8 August 2011 that the Court had, essentially, already embarked upon a summary hearing on the material provided.
Further, as the Court was keen to ensure that each party had been provided with a full opportunity to be heard on the relevant issues, the matter was adjourned for further hearing on 27 September 2011. Further orders were made by consent on 2 September 2011 which included orders designed to obtain single expert evidence as to relevant Sharia law applicable if a summary order for S’s return to the UAE were made. That is discussed further below.
Applicable Law and Principles – Summary Order for Return
The Parties’ Competing Proposals and Approaches
As explained above, the orders sought by each party in this case have changed several times throughout the course of this matter. However, at the hearing on 27 September 2011, I sought and obtained confirmation from Ms McMillan of Counsel for the Mother that the Mother sought a summary order for S to be returned to the UAE and that the Mother did not pursue any order for a stay of proceedings.
The Father proposed final Orders to the effect that S be permitted to remain in the care of the Father and to live in Australia whilst the Father also sought an anti-suit injunction against the continuation of proceedings in the United Arab Emirates. The Father has also, however, contended that given the Mother’s application for an Order returning S to the United Arab Emirates, a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”),[1] the Court ought take the preliminary step of deciding whether a summary hearing or a full trial is the most appropriate way to deal with this matter, and that Orders ought be made to the effect that a full, and not summary, hearing is necessary in this matter. He argued that to be so because of a variety of factors which will be explored in further detail below.
[1] Pt VIIIA, Div 4 of the Act.
The Court’s Approach
The Court’s approach to the Mother’s Application must, by necessity, be informed by reference to her Applications and the submissions on her behalf from time to time. In this context, it is important to note that in Karim v Khalid (2007) 38 Fam LR 300, the Full Court observed, at paragraph [49], as follows:
[49] This comparison of the factual circumstances of B v B (Re Jurisdiction) (above) with the factual circumstances of EJK v TSL (above) and of the present case illustrates how important it is in arguing, or determining, a case which involves some overseas aspect, to identify clearly at the outset what is the actual relief which is being, or can be, sought in the factual circumstances of the case, and thus what principles are to be applied.
As already noted, in some of her earlier Applications and submissions, the Mother sought both a stay of the current proceedings in Australia and an Order for the return of the child to the United Arab Emirates and to the care of his mother. As will become apparent, this combination, had it not been clarified at the 27 September hearing, would have become problematic.
However, the greatest problem that the Mother faced with the proposal set out above was that she sought to enter a conditional appearance despite the fact that it was the Mother herself who instituted proceedings seeking parenting orders in Australia without initially making any such objection to jurisdiction (although I do note the filing of an Amended Initiating Application on 18 July 2011, the date of the first hearing of this matter, which requested a stay of proceedings). In doing so, she clearly submitted to and enlivened the jurisdiction of the Family Court of Australia.[2] Thus, the Mother’s attempt to enter a conditional appearance, as per her Outline of Submissions filed by leave on 18 July 2011, was ineffective. Essentially, as was held in Pagliotti & Hartner (2009) FLC 93-393 at [162], if a party appears to seek relief as an applicant in a case, they are then precluded from relying on a conditional appearance to later seek a stay of proceedings concerning the same subject matter. Consequently, the Mother could not legitimately file an Initiating Application enlivening the jurisdiction of this Court requesting parenting and other Orders and subsequently ask this Court to decline jurisdiction. Had the Mother instead initiated an application for a pre-emptive anti-suit injunction and enforcement of the Sharia Court proceedings, that would have obliged the Court to consider those applications, but that was not in fact what occurred.
[2] Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223.
A second key problem with the Mother’s submissions was that Ms McMillan attempted to argue her case, at least initially, on the basis of the common law principles of forum non conveniens. This would have been appropriate had a stay been the appropriate order to request following the High Court’s decision in Agar v Hyde (2000) 201 CLR 552. However, in a parenting case such as this where the child is present in Australia, the case law clearly indicates that that is not the correct test or approach to take (as Ms McMillan, in the event, subsequently accepted). The proper test is, in fact, the “best interests” test, as held in ZP v PS (1994) 181 CLR 639, rather than the Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 “clearly inappropriate forum” test associated with the common law principles of forum non conveniens. This much is clear on the case law; however, given that there was some debate, at least in the Mother’s written submissions, as to the appropriate test; and having regard to the observations the Full Court made in Karim (supra) about error in approach; I will set out here the line of authority which has led me to apply the “best interests” test.
The issue appeared to be conclusively decided in the 1994 case of ZP v PS (1994) 181 CLR 639. In that case, the parties, Greek citizens whose child was born in Greece, separated and registered an agreement concerning their child with Greek courts which gave residence to the mother and required her and the child remain in Greece. Contrary to that Order, the mother took the child to Australia without the father’s consent and applied for parenting Orders in Australia. The father, after obtaining an Order in the Greek courts awarding him custody of the child, then came to Australia and applied for an Order that the child be returned to Greece and to his care. The question thus arose as to whether the Australian courts should decline to exercise jurisdiction on the issue of a child’s residence on the basis of the principle of forum non conveniens. Mason CJ and Toohey and McHugh JJ, in a joint judgment, held that where a child is within the Family Court’s jurisdiction, “…the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.”[3] This was on the basis that the welfare jurisdiction invested in the Family Court by Part VII of the Family Law Act 1975 (Cth) is similar to the parens patrie jurisdiction of the Court of Chancery in that the best interests of the child must be the, “…first and paramount consideration…”,[4] thus implying that the common law principles of forum non conveniens must take a back seat in any judicial determination of parenting matters in favour of those best interest considerations. Brennan, Dawson, Deane and Gaudron JJ made similar findings.[5]
[3] at 647.
[4] at 647.
[5] at 664, 669.
However, the broad application of that principle was then brought into question by the decision of the Full Court of the Family Court in B v B (2003) 31 Fam LR 7. In that case, a father initiated proceedings in Australia regarding access to children who were living with their mother in New Zealand. That caused the mother to then initiate similar proceedings in the New Zealand courts and apply to the Australian courts for a stay of the Australian proceedings on the basis of forum non conveniens. There, Holden, Coleman and Warnick JJ held that, due to the 1995 amendments to the Act in which the paramountcy principle referred to above had been limited in its application to only certain orders (such as parenting orders) rather than applying to all orders relating to children (such as those concerning a stay of parenting proceedings as applied for by the mother in that case), the approach in ZP v PS (supra) was no longer appropriate. This was on the basis that an application for a stay was a purely procedural matter rather than one governed by the paramountcy principle.[6] Consequently, the principles applicable to ordinary civil cases, namely the common law principles of forum non conveniens, were held to be applicable to such cases.[7]
[6] at 14.
[7] at 15.
The Full Court of the Family Court then attempted to reconcile these two decisions in EJK v TSL (2006) 35 Fam LR 559 at 575-576 by holding that both cases were limited to their particular factual circumstances. The approach taken in ZP v PS (supra) was held to be appropriate where the child was in Australia and the Court was asked to consider the simple return of the child to another jurisdiction and not an application for a stay of the Australian proceedings, while the approach adopted in B v B (supra), was held to apply to situations where the child was not in Australia at the time and a party only applied for a stay of proceedings. By way of explanation, Holden, Coleman and Boland JJ went on to enunciate the following principles:[8]
…
(ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the court’s inherent power to grant a stay or an anti suit injunction based on common law principles;
(iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the court;
(iv) in proceedings involving competing fora when the child is in Australia and the court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 65E);
(v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Pt VII of the Act and determined in accordance with s 60CA;
(vi) in some circumstances, such as an abduction from a non-Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the court will have regard to the child’s best interests as its paramount consideration;
(vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and
(viii) that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.
[8] at 577.
This approach has since been confirmed by the Full Court of the Family Court in Karim v Khalid (supra), with the Court there making similar distinctions on the basis of the presence of the child within the jurisdiction and the application by the parties for either solely the return of a child or solely for a stay of proceedings.
In this case, the subject child, S, was and is present in Australia. However, the Mother, in her Outline of Submissions filed by leave on 18 July 2011 (as distinct from her Amended Application filed contemporaneously), sought both an Order for the return of S to the United Arab Emirates, a stay of the present proceedings in Australia and enforcement of the orders of the Sharia Court in Australia as against the Father. Consequently, had that remained the Mother’s position this case would not have readily fit into either of the neat factual scenarios set out in either ZP v PS (supra) or B v B (supra). Fortunately, given the clarification of the Mother’s position on 27 September 2011 indicating that only a summary order for S’s return was sought in circumstances where S was in Australia, it is now clear that the approach set out in ZP v PS (supra) applies to this case, namely that the applicable test is the best interests test.
Even had the Mother not so clarified her position, the outcome would have been the same as, following the principles enunciated in EJK v TSL (supra), the key question is whether a stay of proceedings will be sufficient to finalise the matter or whether it is also necessary to make a parenting order. Here, simply ordering a stay of the Australian proceedings would be insufficient to deal with the issues at hand as that would leave S in a form of “limbo” without parenting orders governing his residence while parenting proceedings continued in the UAE. Thus, evidently, a parenting order would be required which, following EJK v TSL (supra), must then lead to the application of the “best interests” test rather than the common law principles of forum non conveniens.
The proper approach to take when applying this “best interests” test regarding a child who is present in Australia (as S is in this case) was set out in EJK v TSL (supra). In that case, as already noted, Holden, Boland and Coleman JJ held at 577:
…
(vi) in some circumstances, such as an abduction from a non-Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the court will have regard to the child’s best interests as its paramount consideration;
…
This follows the approach taken by Mason CJ, Toohey and McHugh JJ at 81,000 in ZP v PS (supra) where it was held:
That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction. In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.
Mr North SC, Counsel for the Father, submitted that the Court should approach this issue by first asking whether, on the basis of certain criteria, a summary hearing is appropriate to resolve the matter and then, if the answer is yes, having a summary hearing on the matter of residence on the basis of best interests or, if the answer is no (as he contends), to then instead undertake a full hearing of the issue of residence under Part VII of the Act. However, on consideration of the authorities listed above, it appears that what the High Court and the Full Court in fact intended is that where a child is in Australia in a dispute such as this, the Court must consider whether:
a)it is a proper exercise of the welfare jurisdiction of the Court (under s 67ZC of the Act) for the Court to make a summary order for return of the child to the jurisdiction from which the child has been removed or retained so that questions concerning “custody” and ‘access” may be dealt with by the courts of that jurisdiction; then
b)if the answer is no, the Court must then embark on determining the issue of “custody” itself through a full trial of the matter, accepting that such further investigation of the issue may (in an exceptional case) result in the Court declining to make parenting orders based on a conclusion that the interests of the child will be best served by the foreign forum determining the issue.
That interpretation is consistent with the approval of Mason CJ, Toohey and McHugh JJ in ZP v PS of Buckley LJ’s comments in In Re L (Minors) [1974] 1 WLR 250 at 264-265:
To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has become accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child.
Consequently, the Court’s first step in this factual scenario should be to consider whether it is in S’s best interests that a summary order should be made for S’s return to the UAE to allow any questions concerning his “custody” to be determined by the Courts of the UAE. If the answer is in the affirmative, then such an Order should be made. If the answer is in the negative, then the Court must proceed to investigate parenting issues, including the question of residence, confident in the knowledge that the retention of S in Australia for the purpose of that full hearing, no matter its outcome, is not prima facie contrary to S’s best interests.
Thus, taking that approach, this Court must first consider whether a summary Order for S’s return to the UAE is in his best interests.
At this point, it is apposite to consider whether the Hague Convention[9] has any impact upon this matter. The Convention is an international recognition of the need to protect children from the harmful effects of their wrongful removal from one country to another. It is designed to ensure the swift return of abducted children to the country from which they have been abducted, and contains only limited and specific grounds on which a Court may decline to order the return of the child. In this case, as the UAE is not a signatory to the Hague Convention, its principles do not, prima facie, apply to this case.
[9] The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), made under ss 111B and 111D of the Family Law Act 1975 (Cth) (“the Act”) which give effect to the Convention on the Civil Aspects of International Child Abduction which is set out in Schedule 1 to the Regulations which came into force on 1 January 1987.
It might be thought that where a child has been abducted from a non-Convention country, that whilst the Hague Convention has no direct application, the principles underlying the origins and purpose of the Hague Convention may nevertheless inform the Court’s determination as to whether a summary order ought be made for S to be returned to the UAE.
Indeed, there are decisions of the Full Court of this Court supportive of the proposition that the principles underlying the Convention may be relevant in relation to abductions from non-Convention countries.[10] Likewise, it appears that the influence of the Hague Convention has led courts overseas to give recognition to the principle that abducted children should ordinarily be returned to their place of habitual residence in order for their futures to be determined by the courts of that place, even where the country of origin is not a Convention country.[11]
[10] See, for example, Barrios & Sanchez (1989) 13 Fam LR 477; Van Rensburg & Paquay (1993) 16 Fam LR 680.
[11] See, for example, Bajrami v Albania (12 December 2006, INCADAT HC/E/898) (ECHR); The Matter of the Children’s Law Reform Act, de Martinez v Martinez-Jarquin (Ontario, 18 July 1990, INCADAT HC/E/CA368); Re JA (Child Abduction: Non-Convention Coutnry) [1998] 1 FLR 231 (UK).
In De L v Director-General, New South Wales Dept of Community Services (1996) FLC 92-706, the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), in a decision delivered subsequent to the Full Court authorities referred to above, provided an authoritative explanation of the origins and purpose of the Convention and the Australian law providing for its implementation, explaining the interaction between the Convention’s principles and the “paramountcy principle” of applying the best interests test which exists in Australian law. The High Court rejected an argument that the Regulations were governed by the principle that the child’s welfare was the paramount consideration (then s 64(1)(a), now s 60CA of the Act), or alternatively were invalid because they were inconsistent with the principle that the child’s welfare is to be regarded as the paramount consideration.
After observations to the effect that the Convention reflects a compromise between the principle that an abducted child should be returned forthwith on the one hand, and that a departure from that principle in limited cases justified in the interests of the child on the other, the High Court said:
The regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring that forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other Contracting State to deal in a proper fashion with matters relating to the custody of children under the age of sixteen. Necessarily, proceedings under the Regulations are to be seen as standing apart from proceedings to which s 64(1)(a) is directed. It follows that they are not subject to the paramountcy principle.
(emphasis added)
In this case where, as discussed above, the “paramountcy principle” of the best interests test governs the decision to be made, it is then evident that the “compromise” and the principles underlying the Hague Convention (such as having faith in the domestic law of the UAE “to deal in a proper fashion with matters relating to the custody” of S) cannot be assumed. Instead, the focus must remain on the “best interests” of S, and that may, as it has here, require a consideration of whether the domestic law of S’s country of habitual residence, namely the Sharia family law of the UAE will, “…deal in a proper fashion with matters relating to the custody of [S]…”
Summary Order for Return and Best Interests
Section 67ZC of the Act expresses the welfare jurisdiction of the Court in the following terms:
67ZC Orders relating to welfare of children
(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
(Notes removed)
Sections 60CB to 60CG of the Act deal with how the Court determines a child’s best interests.
However, the respective affidavits of the parties contain myriad issues of disputed fact on the central issues. The hearing of this application to date has been an abridged process in which none of the affidavit evidence has been tested by cross-examination. As but one example, the Father’s case is that the Mother will not be able to continue living in the premises representing the former matrimonial home and the home with which S is familiar, such that if S’s return is ordered, it cannot be concluded that he will be accommodated in that home. The Mother disputes this. Another example is the Mother’s case to the effect that the Father does not truly intend to relocate to Australia, but has engineered a situation where S is in Australia whilst he will in fact continue his business affairs in the UAE. The Father disputes this.
Thus, there are many issues which are relevant to one or more of the s 60CC considerations where the Court cannot, at this stage, as a consequence of this necessarily abridged process, and where the scope of the inquiry is thereby significantly curtailed, make findings of fact.
As was observed by the Full Court in Goode & Goode (2006) FLC 93-286 at paragraph [68]:
…Where the Court cannot make findings of fact, it should not be drawn into issues of fact, or matters relating to the merits of the substantive case where findings are not possible. …
In Zabini & Zabini [2010] FamCAFC 10, Warnick J sitting as a single judge constituting the Full Court in an appeal from an interim parenting case observed:
1. The usual interim hearing for parenting orders involves fact-heavy material, full of contention that cannot be resolved on the papers, yet there is no cross-examination. Nor does any party usually bear an onus to assist a court in the determination of an application or response.
2. In such hearings, since the amendments to the Family Law Act in 2006, in reasoning to a conclusion as to the proper parenting orders, the court must follow one or other of prescribed paths. Yet the essential platform underpinning each of those paths is a detailed fact-finding process required by s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).
3. Thus, a dilemma of labyrinthine complexity exists.
I express my respectful agreement with His Honour’s observations.
In this case, there are many issues that can only be properly inquired into and resolved at a trial but, fortunately, arrangements have been made for there to be a trial of these issues commencing on 29 November 2011. However, some discussion of the relevant factual matrix is required at this interim stage, albeit within the constraints referred to above.
The central inter-connected issues which lie at the heart of determining whether it is a proper exercise of the welfare jurisdiction for this Court to make a summary Order for S’s return to the UAE are:
a)The nature and degree of S’s established connections with the UAE and whether the disturbance of those connections produces factors which should be eliminated from S’s life as speedily as possible; and
b)Whether, if a summary order for return to the UAE were made, there is a reasonable expectation that any dispute about the parenting arrangements of S will be satisfactorily resolved in the courts of the UAE; and
c)Whether it would be contrary to S’s best interests for him to reside in Australia for the necessary time it will take before such investigation can be undertaken in a trial here; and
(a) S’s Connections with the UAE
Prior to 10 June 2011, S, aged 8 years (having been born in April 2003), had resided in the UAE with his parents and the Mother’s son, C, who is now sixteen years of age. Until the parties’ physical separation in December 2010, S had essentially resided with both parents. Thereafter until 10 June 2011, S primarily resided with the Mother but spent every second weekend and every Tuesday evening with the Father.
Whilst living in the UAE, S became accustomed to spending holiday periods in both Scotland, where the Mother’s extended family members reside, and in Australia, whether the Father’s extended family members reside.
Whilst it is true that S has grown up in the UAE, it cannot be said that the UAE is S’s “native land” within the meaning of that expression as referred to by Buckley LJ in In re L (Minors) (supra) given that neither of S’s parents nor S hold citizenship in the UAE. The Mother is a British citizen, the Father is an Australian citizen and S is a citizen of both of those countries. S’s parents resided in the UAE only on visas that must be continuously renewed and S’s entitlement to reside in the UAE derived only from his father’s sponsorship.
By reference to Buckley LJ’s comments in In re L (Minors) (supra), cited with approval by the High Court in ZP v PS (supra), it cannot be said that S was removed from his “native land” to a place foreign to him. Islam is the official religion of the UAE and Arabic is its official language. It can reasonably be inferred that the predominant social customs in the UAE are informed by the fact that its dominant religion is Islam and its dominant language and culture is Arabic. This is not the religion, language or culture of S or his parents who all speak English and are from Anglo-Saxon cultural backgrounds. By contrast, Australia has the same official language and customs as those practised by both S and his parents. Furthermore, although S has historically attended school in the UAE, that school an English-speaking school applying the curriculum used also in Queensland, Australia which is similar to the New South Wales curriculum S is currently following at his school in Australia.
Therefore, in remaining in Australia, S has not been divorced from the social customs or language to which he was accustomed, nor has his education been significantly interrupted (save for the differences in school terms between the UAE and Australia).
Of course, the fundamental connection for S with the UAE is the fact that that is where his mother lives and proposes to continue to live, as does her son and S’s half-sibling, C. However, the factors referred to are those which Buckley LJ identified as examples of factors, “…which are likely to be psychologically disturbing to the child…” justifying the speedy elimination of those factors by summary order for return and there is no uncontested evidence before me that this is so for S.
I note that the Mother deposes at paragraph 35 of her affidavit filed 30 June 2011 that she spoke to S on 11 June at his paternal grandmother’s home and that, “He seemed to be ok and told me that he was with [D] and that he was having a holiday in Australia.”
The Mother travelled to Australia and, as a consequence of Orders I made at the hearing on 18 July 2011, then spent time with S. There is no evidence before me to demonstrate factors pointing towards S being psychologically disturbed by being in Australia. Indeed, it had been planned that he would travel to Australia for the holidays and that was apparently S’s expectation, albeit that the Father unilaterally brought forward the timing of S’s travel to Australia and in the event his time here has been extended and S has commenced attending school here.
It needs to be kept in mind that if a trial of these proceedings occurs, commencing on 29 November 2011, a possible outcome is the making of parenting orders which militate the return of S to the UAE. Another possible outcome is that it is determined that this is one of those exceptional cases where the Court should decline to make parenting Orders and determines that S ought be returned to the UAE for the courts of that country to resolve the parenting issues. However, what is relevant for present purposes is whether a summary order for return is justified as being in S’s best interests. Absent the facts referred to, it can be concluded that there does not appear to be a need to eliminate “foreign” factors from S’s life which would otherwise militate in favour of an Order for summary return.
The foregoing deals in part with the central inter-connected issues earlier identified above. However, more will be said about that in dealing specifically with other relevant s 60CC factors.
For present purposes, I turn to consider the issue of whether, if a summary order for return to the UAE were made, there is a reasonable expectation that any dispute about the parenting arrangements for S will be satisfactorily resolved in the courts of the UAE.
(b) The Approach of UAE Courts to Parenting Disputes
It is appropriate to consider the potential outcomes should a summary order for S’s return to the UAE be made, as that is a factor which significantly affects whether or not such an outcome is in S’s best interests (and is therefore a relevant circumstance that can be considered in the context of s 60CC(3)(m)).
This is a relevant consideration, as indicated by Brennan and Dawson JJ in ZP v PS (supra):
In determining an application for speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child's permanent custody. But that is not to apply a “clearly inappropriate forum” criterion to the determination of the application. If the Family Court properly makes an order for the speedy return of a child abducted from another country, the Court is not declining to exercise its jurisdiction; it is exercising its jurisdiction by making an order dictated by the welfare of that child.
(emphasis added)
Consequently, I now turn to the evidence before me as to the approach of the Sharia Court in the United Arab Emirates to determining the custody of S under Sharia Law.
There are competing versions (and expert opinions) provided by the Mother and the Father in their material as to the Sharia Court’s approach to the issue of the residence of a child of S’s age. However, it is agreed by the parties that the Sharia Courts have applied Sharia Law and not Australian law (and will continue to so do), apparently due to a defect in the procedural aspects of the Father’s application in that respect.
The Mother’s evidence on this matter is contained in two affidavits – that of the Mother, filed 18 July 2011 and that of her solicitor, Ms Rachael Murray, filed 8 August 2011.
In the former, the Mother annexes what she deposes to be a translation by “[R Legal Translation Service]” of the judgment of the Sharia Court of 26 June 2011. The relevant parts of that annexure which refer to the Court’s approach to residence were translated as follows:
…also the custody of the son at this age, he was born on […]/04/2003, is to the mother in all the laws and legislations and it may not be separated from her because it is most in need of care and custody of his mother than his father pursuant to the text of articles 142, 143, 146 and 148 paragraph 2 of the Law of Personal Status, which read: it is required for alimony and custody home payment based on the statements, evidence submitted, and memos of the parties, and where it was settled by the jurisprudence of the Federal Supreme Court that the trial court is full authorized to understand the reality, assess evidence and documents and extract what convinces it as long as it is palatable and has its origin fixed in the papers and leads to the conclusion of the sentence.
VERDICT
1. Rule for the plaintiff the custody of little [S] and prevent the defendant from opposing her.
…
The Mother then also consulted another expert in this area, Mr A, who made the following comments about the 26 June judgment in the 8 August 2011 affidavit of Ms Murray:
As to the best interest (sic), the court essentially said that it is self evident that the mother of a seven years (sic) would serve the best interest of the child, there is nothing in the records to say otherwise.
The Father provides further evidence as to the attitude of Sharia Law to custody disputes. In an affidavit of Ms Kerrie-Anne Maree Craig filed on the Father’s behalf on 15 July 2011, a report of Ms M, a solicitor in the UAE, is attached. That report states regarding the 26 June 2011 judgment:
The court in its judgment decided to grant custody of [S] to [the Mother] inter alia on the ground that the mother has preference to the custody of the child over all others.
…
In the case of [Dr Randle] the court decided that the custody of [S] born on […]/4/2003 is as per all laws (as per the Judgment arguments) for the mother.
The UAE Personal Status Law article 156 the custody for minors is for the mother until the Boy is 11 years old and the girl is 13 years old.
Nevertheless, the UAE supreme court Jurisprudences is able to consider that the custody age is not mandatory and that the benefit of the minor can be taken in consideration where in the rare and unusual circumstance a mother is seen to be unable or unfit to take care of a minor, which means that a UAE Sharia court can decide to give custody to the Father for a boy who is under 11 years old, If (sic), the court finds that the benefit and wellness of the Boy is better with his father than with his mother.
Upon the request of the Court for clarification of Sharia law on this issue, given the poor translations provided to that point, an affidavit of Ms T attaching an expert report, filed 27 September 2011, was provided to the Court. This was intended to be single joint expert evidence, but due to disputes between the parties over the letter of instruction to the expert, this became adversarial expert evidence adduced by the Father, albeit that it seems Ms T had been earlier identified by the Wife’s representatives as having the relevant expertise. Ms T’s comments in her report about the Sharia Law of the UAE’s approach to deciding residence disputes include:
The UAE Courts do take a ‘welfare based’ approach to the resolution of children matters.
…
Theft is an ‘honour’ crime. If a mother commits an honour crime as breach of trust, it is possible that she will lose custody of her child, however the Judge will have discretion to decide; he would take in to account the child’s wishes, the best interests of the child, the availability of another suitable custodian and all the other circumstances of the case.
…
After the mother, the father may be considered as being next in line to be the custodian of the children, but only if he has a female relative living with him at the time whom the court considers fit to help care for the children. If the father has no female relative living with him, after the mother, custody will be given to the mother’s mother, and then the father’s mother, then sisters or aunts. The applicable family member must move to the country in which the father lives (unless he gives his consent otherwise) so that he can exercise his rights as the child’s Guardian, and to have contact (to exercise his ‘visitation rights’) with the child.
…
Custody of a child aged 8 would automatically be awarded to the mother. It would be for the father to dispute custody by claiming that the mother was ‘unfit’ to care for the child for one or more reasons (for example her consumption of alcohol, her social lifestyle, her religion, her cohabitation with another man).
…
If the father is living permanently outside the UAE, he has the right to request the mother (if she is custodian) to bring the child to live in the same country as him so that he may exercise his rights to have contact with the child. If the mother fails to bring the child to live in the same country as the father, the court can order the mother lose her rights to custody of the child (article 152 Federal law 28 of 2005).
As confusing as the earlier “translations” may be, the preponderance of this evidence, including that provided by both parties, indicates that there is a presumption in the UAE that a child of S’s age should automatically be placed in the care of the Mother unless it can be proven that she is in some way unfit as a parent in the eyes of Sharia law. This is a very high threshold for a father to meet, and indeed is a wholly different approach to the best interests test as it is understood in Australian family law, which applies no such presumption.
The concern that this Court has, then, is that application of such a presumption, without any further consideration of S’s best interests is unlikely, logically, to be in S’s best interests. This is a fact or circumstance that is relevant within the meaning of s 60CC(3)(m). This factor assumes overwhelming significance in the absence of undisputed facts which allow conclusions to be reached on the s 60CC considerations overall which balance out this factor (discussed further below). For example, if there was undisputed evidence that S’s physical or psychological wellbeing was at risk, or that his Father poses a risk of abuse to S, the fact that a Sharia Court might not undertake any inquiry and would simply apply a presumption that S should be in the care of his mother might not render a summary order for S’s return to the UAE inconsistent with, or inimical to, S’s best interests. It is therefore necessary to consider the s 60CC considerations overall and any conclusions that can be made about them within the constraints already referred to.
(c) Best interests - s 60CC(2)
This section requires that the Court consider the “primary considerations” of the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Regarding the first of those considerations, it is relevant that the distance between the United Arab Emirates, where the Mother currently resides and deposes that she intends to continue to reside, and Australia, where the Father deposes that he intends S (and, at some point, the Father himself) to reside, is great. Maintaining a meaningful relationship over such a distance can be fraught with difficulty. This is compounded by the fact that the Father deposes, in his affidavit filed 11 August 2011, that he will not be residing in Australia with S (should S remain in Australia) in the immediate future but will remain in UAE City 1 to manage his affairs there for an unstated period. However, it is acknowledged that the Father attaches evidence in his affidavit of 14 September 2011 of an intention to ship his belongings to Australia, indicating an intention for a permanent move to Australia in the near future. Communication via Skype and telephone are one form of maintaining a relationship, but at S’s age, it is truly face to face contact which is vital in maintaining a meaningful relationship between him and each of his parents.
The Father deposes at paragraph 23.2 of his affidavit filed 11 August 2011 that he would be willing to fund flights for the Mother to visit S in Australia twice a year. This would aid in ensuring the maintenance of a meaningful relationship between S and his mother; however, it is evident that such a relationship would be more easily supported should S be ordered returned to the United Arab Emirates. That is even more so the case given that S’s father will apparently also be residing in the United Arab Emirates in at least the near future.
The disconnection between S and his mother that has occurred in consequence of S’s removal from the UAE on 10 June 2011 is a significant matter of concern. However, in circumstances where there can be a trial here in the short term, in the absence of convincing undisputed evidence of significant distress to S by remaining here pending such a trial, I cannot conclude that this overwhelms other factors such that a summary Order for return ought be made.
The second of the primary considerations can be dealt with more summarily. Despite some allegations by the Mother of aggression on the Father’s part and vice versa, I could not find on the currently untested evidence that family violence is established within the meaning of that term as defined in the Act.
Having considered these primary considerations, I now turn to the (relevant) “additional considerations” relevant to determining S’s best interests.
(c) Best interests - s 60CC(3)
The first of these additional considerations, namely S’s views, can be quickly dealt with. At present, there is no independent evidence as to S’s views and thus this consideration does not impact upon my decision.
The second factor, s 60CC(3)(b), needs further comment as it requires this Court to consider the nature of the child’s relationship with each of his parents and other persons. In her affidavit filed 30 June 2011, the Mother deposes to having been S’s primary caregiver prior to and following the parties’ separation in December 2010 (with the aid of maids and a driver, to whom the Mother deposes S is close). Evidently, S would have a close relationship with his mother that would appear to be acknowledged by the Father given his acceptance that the parties agreed S was to be primarily cared for by his mother for at least a period post-physical separation.
S’s half-brother, C, also resides with the Mother and has always been a part of S’s family unit in the UAE. However, the Father’s affidavit of 12 July 2011 deposes that:
[C] and [S] do not have a close relationship, they do not play together, and they have not done homework together. [C] does not watch cartoons with [S]. In 6 years [C] has never joined myself and [S] swimming at the beach or at the pool. The only family activity that [C] has joined in over the years has been the yearly ski holiday in Europe.
Despite the Father’s attempt to downplay the relationship between the two boys, this lack of common activities would appear to be relatively normal given the large age gap between S, who is presently eight years of age, and C, who is presently 16 years of age. Therefore, I find that nonetheless, it can be inferred that C would be an important figure for S, given that they have lived together for the entirety of S’s life.
The Father has also historically lived with S up until the parties’ separation in December 2010. Even after that point (up until S’s removal from the UAE), the Father spent every second weekend with S as well as Tuesday evenings for sport practice. Therefore, it can also be inferred that S’s relationship with his father is important to him.
The parties equally attempt to imply that the other party’s relationship with S is not as strong as each would like to make out. The Mother deposes in her affidavit filed 30 June 2011 that, “[The Father] rarely attended events for the children…” and that, “He [S] is very scared of [the Father] and prior to separation was sensitive to arguments between [the Father] and I.” The Father deposes in his affidavit filed 12 July 2011 that, “[The Mother] spent substantially more time caring for her horses than for [S]. … [the Mother] would be at the stables for significant periods of time caring for the horses whilst [S] would be left alone in the home on almost a daily basis.” Given the conflicting nature of the presently untested evidence of each party, it is not possible to resolve this question apart from drawing the reasonable inference on the evidence before me that S has a strong connection with both parents and his half-brother C given that they are persons he has lived with for the majority of his life.
The Father also deposes to S having a, “…close and loving relationship with my mother [the paternal grandmother] and enjoys the time that he spends with her. He also has a very strong relationship with each of his brothers.” However, given that up until recently, S has largely only spent holiday time with these parties, it may well be that his relationship with his paternal grandmother and the Father’s other children is not as significant as that which exists between S and his parents and C. However, that is a matter that cannot be resolved at an interim stage.
Section 60CC(3)(c) requires this Court to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. To this extent, again the conflicting evidence of the parties renders it difficult to fully assess this factor. However, both parties agree in their affidavit evidence that when S was in the Mother’s care after the parties’ separation, she facilitated an arrangement whereby S saw his father every second weekend and after school every Tuesday. By contrast, when the Father had S in his care for the “holiday” to Australia, he refused to allow the Mother to have contact with S when the Mother sought to see S on 22 June 2011. Further contact between the Mother and S ordered to occur in July did, however, occur, with the Father handing over S to the Mother at the appointed time as deposed to by the Mother in her affidavit filed 8 August 2011. Regular telephone contact with the Mother also appears to have been maintained, as she deposes in that same affidavit. However, problems did arise in relation to the proposed assessment at L School which, evidence from the Bar table informed this Court, was due to occur on S’s first day of school. The Mother, on her affidavit evidence, changed her flights in order to be able to attend this assessment, but was later informed that the assessment would simply be at some point during S’s first week. Consequently, the Mother was unable to attend S’s assessment. Of course, in circumstances where the Father acted unilaterally to remove S from the UAE and from his mother’s primary care, the question of the Father’s willingness and ability will no doubt be focussed upon by the Mother at trial.
On the other hand, there is also evidence that the Mother may be reticent to allow contact between S and the Father. She deposes that S is “very scared” of the Father and that:
[The Father] has delusions of grandeur. I am concerned that he suffers from an undiagnosed mental illness that impacts upon his ability to care for [S]. I seek an order in these proceedings that he submit for an independent psychiatric assessment.
On balance, I find that while both parties exhibit a clear dislike for the other which has the potential to interfere with the likelihood of their facilitating a close and continuing relationship with the other parent, the Father’s deliberate interference with the Mother seeing S through his unilateral removal of S from the United Arab Emirates and the incident of 22 June 2011 indicates that the Father may not readily put significant efforts into facilitating S’s relationship with his mother. By contrast, the Mother’s historical effective implementation of arrangements indicate that she may be more likely to facilitate time between S and the Father, although it is questionable whether she remains willing to continue to facilitate such contact given her affidavit evidence about the Father’s ability to care for S, and the events which have since transpired.
The fourth factor, s 60CC(3)(d), requires this Court to consider the likely effect on S of any separation from his parents or any other person with whom he has been living. S has lived with both his mother and C, his half-brother, for his entire life. His father only moved out of the matrimonial home in late 2010. Consequently, separation from any of these parties would likely have a significant impact on S. In particular, given that his mother has been his primary carer, I find that separating S from his mother, particularly given the distance and time differences between Australia and the United Arab Emirates, would detrimentally impact upon him.
The fifth factor, s 60CC(3)(e), entails a consideration of the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. This is a key consideration in this matter, because, as already noted, the distance between the United Arab Emirates and Australia is great, and the cost of ensuring direct contact between S and a parent living in the other country is commensurately high. This is particularly problematic given that the Mother deposes to being in “parlous” financial circumstances. As already noted, the Father does depose at paragraph 23.2 of his affidavit filed 11 August 2011 that he would be willing to fund flights for the Mother to visit S in Australia twice a year. I infer that this means that should S be ordered returned to the United Arab Emirates, the Father could make a similar, if not increased, number of visits to that country. However, a mere two visits a year does not truly amount to “direct contact… on a regular basis.”
Nonetheless, the Father has already shown himself willing to allow S regular telephone contact with his mother, and it can be inferred that the use of free video calling software such as Skype would be a similarly unproblematic manner of maintaining personal relations between S and the Mother. Essentially, I find this factor finely balanced – whatever order is made, the practical difficulties and expense for one party to see S will be relatively great, although in the short term prior to trial, given the Father’s apparent need and ability to travel to the UAE, it seems that if S was in the UAE there might potentially be more scope for S to see both of his parents. This is subject to the caveat that the Mother, supported by Sharia law, may be able to limit the Father’s time.
I find it convenient here to deal with ss 60CC(3)(f) and (g) at the same time; namely, the consideration of the parties’ (and any other person’s) ability to provide for S’s needs and the maturity, sex, lifestyle and background of S and his parents. Assessment of this factor is difficult given the current spate of court cases the Mother is dealing with in the United Arab Emirates, including the criminal case. Should the Mother be imprisoned, or deported, as a consequence of a criminal conviction (which possibilities are not excluded on the evidence before me), the Mother’s ability to provide for S’s needs is obviously in doubt. There also appear to be legal difficulties (deposed to by the Father in his affidavit of 11 August 2011) with the Mother obtaining employment in a business which could be termed as “competing” with her former employer, the Father’s business, rendering it difficult for her to work in her specialty in healthcare. This will make it difficult for the Mother to financially support both herself and S in the United Arab Emirates, although not impossible. On the other hand, while the Father appears to have the financial means to support S, it appears that he has been required to return to UAE City 1 for a significant period (almost a month on his affidavit of 14 September 2011) to organise his business affairs there, leaving S in the care of his extended family. This is not an ideal situation given S’s tender age and his recent commencement at a new school. Otherwise, both parents come from similar cultures (one being born in Scotland and the other in Australia) which have become S’s, given that he has lived in an expatriate community in UAE City 1 and attended an international school teaching the Queensland curriculum.
Given that s 60CC(3)(h) is not applicable to this case, I then turn to s 60CC(3)(i). That requires an assessment of each of the Mother and Father’s attitudes towards the child and the responsibilities of parenthood. Both parents, on the evidence before me, exhibit a sincere concern for S’s well-being, and have both attempted to act in the manner that they thought was in S’s best interests. However, I am concerned that the Father has apparently spent relatively little time in Australia with S since S’s arrival here, particularly given that S has been asked by his father to commence an entirely new life and school in Australia. S arrived in Australia on or around 10 June 2011 with the Father’s son, D, while the Father remained in the United Arab Emirates. From the Mother’s affidavit of 30 June 2011, it appears that the Father only arrived in Australia sometime around 24 June 2011. That is a two week period in which S, an eight year old child, was left without either of his closest family members, his parents, to support him. The Father then left Australia on 10 August 2011, and from the Father’s affidavit filed 14 September 2011, it appeared that he was still in UAE City 1 as of 1 September 2011, with S remaining in the care of his paternal grandmother and half-brother. These significant absences, when S is adjusting to a new life both at home and at school, may indicate a less than desirable attitude towards the responsibilities of parenthood on the Father’s part. By contrast the Mother, despite having her passport confiscated for the purposes of criminal proceedings, nonetheless managed to organise to travel to Australia in an attempt to see and spend time with S.
The next relevant factor, s 60CC(3)(j), is conveniently dealt with at the same time as s 60CC(3)(k) as both concern family violence. At present, there is no family violence order in place. Nonetheless, both parties allege some violence on the part of the other in this matter. The Father, in his affidavit of 12 July 2011, deposes that the incident of 22 June 2011, when the Mother attended the paternal grandmother’s home in an attempt to see S, could have been “an extremely violent physical situation” which he refers to as an “attack”, despite there being no report, by either side, of any physical confrontation. He also deposes in that same affidavit to the Mother’s “violent temper”, “a history of violence and abuse by [the Mother] towards me [the Father]” and that “[the Mother] is six foot tall and has a history of intimidating me and my staff”. He also deposes in that affidavit that the Mother’s other son, C, “explodes with rage” and has “trouble with anger management”, referring to several alleged examples of this. However, given the lack of corroborative evidence and the inconsistency of the reports (such as describing the 22 June 2011 incident as an “attack” when no physical contact is recorded by either party), I cannot positively find that family violence, within the meaning of that term in the Act, exists in the Mother’s household.
The Mother, in her affidavit of 30 June 2011, deposes to the Father threatening to kill her in November 2010 and to hitting her in December 2010 upon her refusal to have intimate relations with him. She also deposes to the Father beating a maid in UAE City 1] to the point where she had to be taken to hospital. However, again, there is no objective independent evidence of any of these incidents, and thus I cannot make any conclusive finding on the untested evidence that family violence presents a risk to S in the Father’s household.
Section 60CC(3)(l) requires this Court to consider whether it would be preferable to make an Order that would be least likely to lead to further litigation. Evidently, reducing further litigation would be to S’s benefit by introducing certainty into his living arrangements and minimising the potential for conflict between his two central attachment figures, namely his mother and father. An Order for S’s immediate return to the United Arab Emirates would aid in limiting litigation in Australia; however, litigation would then continue in the UAE. Thus, whatever decision this Court makes, further litigation is, unfortunately, inevitable. Consequently, this factor does not weigh heavily in my conclusions.
Section 60CC(3)(m) enables the Court to take into account any other fact or circumstance that the Court thinks is relevant. Whilst the common law principles of forum non conveniens do not apply for the reasons earlier discussed, factors such as the capacity of the parties to litigate the parenting issues here in Australia as opposed to the UAE are relevant to S’s best interests. The Mother urges as part of her case her limited financial means. The Father attempts to point to features which would demonstrate otherwise, but in this case cannot be resolved at this stage. The Court is mindful that conducting a trial here may put the Mother at a significant disadvantage. However, whilst it may not completely solve any perceived disadvantage, the appointment of an Independent Children’s Lawyer to independently represent S’s interests may go some way to addressing any need to “level the playing field” so far as the respective positions of the parties are concerned.
Conclusion as to Summary Hearing
Before I express my conclusion on this issue, it must first be recorded that child abduction, or the unilateral conduct of one parent to remove a child from the care of the other parent without that parent’s knowledge or consent, particularly on an international scale, is abhorrent. It should neither be encouraged nor condoned, and such actions have the potential to cause a great deal of distress to all parties involved, not least the child or children at the centre of the dispute.
However, I nevertheless find that, on balance, it is not in S’s best interests, or in S’s welfare, that a summary order be made for his return to the United Arab Emirates. Despite the fact that many of the factors above point in favour of S’s return to the UAE as being in his best interests, cumulatively these factors are outweighed by the fact that such an Order would result in S being subjected to a system of law which would apparently apply a presumption to the effect that all children under 11 years should live with their Mother and boys 11 years or older should live with the Father. That is, there would be no proper consideration of or inquiry into S’s best interests as that term is encapsulated in Australian family law. The position would be different if, by birth and citizenship, choice of law, or adherence to the Islamic faith, the parents had chosen such a system of law for themselves and S. As that is not so, in this case I cannot conclude that such a return Order is in S’s best interests.
Of course, it will be seen from the foregoing discussion that some of the factors discussed above point to S’s stability of circumstances being better achieved by his remaining in Australia, particularly whilst issues surrounding the Mother’s employment, her criminal charges and the like are extant. However, it is not necessary to elaborate upon those further than I have already done, given the central finding referred to.
I record that at the hearing on 27 September 2011, Ms McMillan, in respect of the expert evidence of Ms T, and having regard to the unfortunate circumstances addressed in the Mother’s material as to how it came about that what was envisaged to be produced as single expert evidence did not turn out that way; submitted that the Mother should be afforded a further adjournment, albeit for a short period, to attempt to further address the issue of expert evidence concerning Sharia law.
I refused that adjournment essentially because the question of Sharia law has been a live issue throughout these proceedings; the first urgent return date for hearing as requested by the Mother occurred as long ago as 18 July 2011; and both parties recognised during the course of the hearings, particularly the hearings on 8 August 2011 and 2 September 2011, the difficulty of obtaining expert evidence on Sharia law. In those circumstances, I was not persuaded that to yet again adjourn the hearing in what appeared to be the hope, rather than the expectation, that better or different expert evidence could be obtained, was in the interests of any party, nor in the best interests of S.
I find that S’s best interest do not dictate that a summary Order for his return to the UAE ought be made and that a full trial of the parenting issues here is required to resolve parenting Orders which are in S’s best interests.
Applicable Law and Principles - Anti-Suit Injunction
The Father, in his case, makes an application for an anti-suit injunction to be granted against the continuation of the proceedings currently on foot in the Sharia Court in the United Arab Emirates. The principles governing the making of such an order were set out by the majority of Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ in CSR Ltd v Cigna (1997) 189 CLR 345.
The first step to be undertaken by a Court considering an application for an anti-suit injunction, following the reasoning of the High Court in that case, is to consider whether or not the Australian proceedings should be stayed.[12] This question has been addressed earlier in these reasons, with the conclusion being that a stay is inappropriate on two grounds; firstly, because the Mother submitted to the Australian jurisdiction by commencing parenting proceedings in Australia and thus could not then argue that Australia was forum non conveniens, and secondly, because a stay alone would be insufficient to deal with this matter as that would leave S in Australia without any enforceable parenting order governing his residence and care.
[12] At 390.
The second step is to consider whether the case at hand falls within the two broad categories of cases in which an anti-suit injunction is justified. It is important to note, as the High Court did in Cigna (supra), that, “The inherent power to grant anti-suit injunctions is not… to be restricted to defined and closed categories.”[13] However, that case does seem to set out two distinct, albeit very broad, situations in which an anti-suit injunction may be appropriate:
d)where it is necessary for the protection of the Court’s own proceedings or processes;[14] and
e)as an exercise of the Court’s equitable jurisdiction in order to restrain unconscionable conduct or the unconscientious exercise of legal rights.[15]
[13] At 392.
[14] At 392.
[15] At 392-3.
The High Court explained the former as including situations where the foreign proceedings, “…interfere with or have a tendency to interfere with proceedings pending in that [Australian] court.”[16] That, they indicated, included situations such as where an estate was being administered and a person was seeking, through foreign proceedings, to obtain the sole benefit of certain foreign assets involved in that administration.[17] This category does not appear to apply to the case at hand; here, the competing proceedings are similarly concerned with the residence of S and, unlike in the example above, the proceedings in the United Arab Emirates cannot prevent this Court from effectively making a parenting Order as S is within its jurisdiction.
[16] At 392, citing Gummow J in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 232.
[17] At 392.
Thus it is necessary to turn to the second category. The High Court also fleshed out the content of this category, describing it as including situations where there has been a breach of a contract or an agreement not to sue in a foreign jurisdiction or where the bringing of proceedings in a foreign jurisdiction is, “…vexatious or oppressive.”[18]
[18] At 393.
Given that no such agreement or contract not to sue in Australia existed between the parties, it is necessary to focus on whether or not the proceedings in the United Arab Emirates are vexatious or oppressive. The High Court in Cigna (supra), in considering the meaning of this phrase, approved of Robert Goff LJ’s comments in Bank of Tokyo Ltd v Karoon [1987] AC 45 at 60, where His Honour held that this test would only be satisfied, “…if there is nothing to be gained by them over and above what may be gained in local proceedings.” In applying those principles to the case at hand, it is evident that Robert Goff LJ’s comments are applicable. Here, both cases concern the residence of S. In both cases, the primary relief sought is an Order that S live primarily with his mother. Unlike in Cigna (supra), there is no “better” relief or advantage to be gained by litigating the case, as it has been run, in both jurisdictions, rendering, on a simple interpretation of Lord Robert Goff’s comments, the United Arab Emirates proceedings vexatious.
Of course, there is the complicating issue in this case that the proceedings in the United Arab Emirates were commenced before those commenced in Australia. It would seem strange, in that situation, to then hold that it is the UAE proceedings which are vexatious, rather than the proceedings in Australia. However, the Mother chose to commence parenting proceedings first in the UAE and then to commence similar proceedings in Australia, rather than simply seeking to enter a conditional appearance and request an enforcement of the Sharia Court judgment in Australia. Arguably, such an action can be taken as amounting an election not to continue with the UAE proceedings, and equity, the source of the power to issue anti-suit injunctions, would prevent the Mother from rescinding from such an election.
Nonetheless, a more important consideration in deciding this question is that a trial of the Australian proceedings is to occur as soon as 29 November 2011. Having regard to the fact that one possible (albeit on the authority referred to an unlikely) outcome is that this Court resolves then to make a return Order and allow parenting matters to be determined in the UAE courts, I am not persuaded that the proceedings in the UAE are vexatious or oppressive in the relevant sense in the interim.
CONCLUSION
I refuse the Mother’s application for a summary order for S’s return to the UAE and I refuse the Father’s application for an anti-suit injunction in respect of proceedings in the UAE.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 October 2011.
Associate:
Date: 27 October 2011
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