Sader & Dib
[2023] FedCFamC1F 530
•29 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sader & Dib [2023] FedCFamC1F 530
File number: SYC 3358 of 2023 Judgment of: CAMPTON J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – PARENTING – Urgent application for stop-gap orders as to the appointment of an Independent Children’s Lawyer and the surrender of the child’s passport – Where the mother lives in Country B and asserts the father has removed the child to Australia without her consent – Where the proceedings are set down for an urgent determination as to her relief for the child to be recovered to Country B – Where the child is not yet two years old – Application to appoint an Independent Children’s Lawyer refused – Child’s passport to be surrendered to the Sydney Registry. Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 29 June 2023 Place: Sydney Solicitor for the Applicant: Ms Parker, Legal Aid NSW Sydney Central Family Law Solicitor for the Applicant: Mr Boutros, Orison Law Group ORDERS
SYC 3358 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DIB
Applicant
AND: MR SADER
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
29 JUNE 2023
THE COURT NOTES THAT:
A.For the purpose of these orders, the email to be used to contact my chambers is …@....
B.The mother contends that Exhibit 2 in the proceedings today is an order made in her favour in Country B that provides for the child, X, born 2021 to live with her and spend supervised time with the father for four hours per week.
C.The father says he is not aware of the contended order identified in Exhibit 2, and only has awareness of a judgment entered in his absence in a Country B Court approximately 14 days ago.
D.The mother contends she has always been the primary care giver for X, and that X lived solely with her until March 2023, when the father removed X from a period of supervised time. She says that she reported the removal of X to the police in Country B and that criminal proceedings are on foot in Country B as to that circumstance.
E.On 14 May 2023 the father filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) at Sydney, seeking parenting orders in respect of X.
F.The Initiating Application filed 14 May 2023 records that:
(a)The father was not at that time legally represented;
(b)He sought sole parental responsibility for X “to be able to make crucial decision for her without having to contact her unreachable mother”;
(c)As at the date of filing, the father was present in Australia, ordinarily resident in Australia, an Australian citizen, and domiciled in Australia;
(d)There were no existing orders, agreements, parenting plans or undertakings to a court about family law, child support, family violence or child welfare issues concerning either himself, the mother or X.
G.X is an Australian citizen.
H.The Notice of Risk filed by the father in support of his Initiating Application on 14 May 2023 records his contention that X was at risk of abuse, or had been abused, by the mother, and that:
“However, in Feb 2022 I woke up to discover that [the mother] packed up her belongings and left us without a trace. She has mentioned in the weeks before that she can't handle the family life anymore and refused suggestions of councelling and followed through with her plans.”
(As per the original)
I.The mother says she was not served with that Initiating Application, but learnt of its filing by her own enquiries on 15 June 2023. On 16 June 2023 she filed a Notice of Address for Service.
J.On 17 June 2023 the father filed a Notice of Discontinuance.
K.On 20 June 2023 the mother filed an Initiating Application and an Application in a Proceeding seeking urgent orders for X to be placed on the Airport Watchlist. An order was made placing both X and the father on the Airport Watchlist, and restraining the father from leaving the Commonwealth of Australia pending further order. That order continues to have effect today.
L.On 28 June 2023, a Notice of Address for Service was filed on behalf of the father by Orison Law Group. Mr Boutros of Orison Law Group appeared at today’s hearing on behalf of the father in person in the Sydney Registry, and the father attended today by way of Microsoft Teams. The mother also has attended the listing today from Country B by way of Microsoft Teams.
M.The father advises the Court by way of his solicitor at the hearing today:
(a)As at today, the father remains in Australia with X, although they are not currently in the state of New South Wales;
(b)He requires time to prepare and respond to the mother’s material;
(c)Country B is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, nor is it a country that is a “prescribed overseas jurisdiction” as listed in Schedule 1A or Schedule 2 of the Family Law Regulations 1984 (Cth);
(d)The father will contend that X and the mother have been subject to family violence occasioned by the maternal grandfather, that X has been neglected by the mother including by being left in the care of neighbours where she has possibly been exposed to a risk of “sexual abuse”. He further contends that the mother resided with X in a dangerous and violent area of Country B.
N.The parties married in 2020 and separated on 11 May 2021, prior to X’s birth in 2021.
O.The Court has alerted the parties today as to the provisions of s 70G, s 70H and s 70J of the Family Law Act 1975 (Cth) (“the Act”) and Regulation 23 of the Family Law Regulations 1984 (Cth).
P.A Minute of Order as sought by the mother has been marked as Exhibit 1 in the proceedings today. The father agrees to orders being made in terms of paragraphs 3–8 inclusive of Exhibit 1.
Q.The mother seeks an adjournment so as to file an Amended Initiating Application and affidavit evidence in support thereof.
THE COURT ORDERS THAT:
Procedural orders listing the proceedings for hearing
1.The proceedings be listed at 10.00 am on 27 July 2023 for hearing of any relief as to summary orders and/or interim parenting orders in relation to X, born 2021.
2.For the purpose the hearing on 27 July 2023:
(a)The father is to attend the Sydney Registry in person, and is to present X at the Court Child Services office of the Court at 9.30 am on 27 July 2023;
(b)The mother is granted leave to attend the hearing by Microsoft Teams.
3.On or before 14 July 2023, the mother is to file and serve any Amended Initiating Application upon which she seeks to rely specifying with particularity her orders sought on a final and interlocutory basis, together with any affidavit in support thereof and any other document upon which she would seek to rely at the hearing on 27 July 2023.
4.On or before 25 July 2023, the father is to file and serve any Response to the mother’s Amended Initiating Application upon which he seeks to rely specifying with particularity his orders sought on a final and interlocutory basis, together with any affidavit in support thereof and any other document upon which he would seek to rely at the hearing on 27 July 2023.
5.On or before 4.00 pm on 26 July 2023, each party shall file and serve an Outline of Case identifying:
(a)The material to be relied upon at the hearing; and
(b)Short submissions in support of their relief sought at the hearing, identifying relevant s 60CC factors (if appropriate) or otherwise relevant legislation and/or authority grounding the relief sought.
6.Each party is at liberty to issue such subpoena as they see fit for the purpose of the hearing, provided that such subpoena is returnable no later than 25 July 2023 and any documents produced on subpoena be inspected prior to 26 July 2023.
Liberty to relist
7.Each of the mother and father have leave to relist the proceedings on short notice, including in the event of any issue as to compliance with the orders or in the event any issue arises as to the preparation of the matter for the hearing on 27 July 2023, by way of an email request to my chambers that copies in the other party and annexes a Minute of Order sought on the relisting.
Airport Watch list orders
8.Orders 1 and 2 made 20 June 2023 are confirmed, such that the father remains restrained from removing or attempting to remove X from Australia or from leaving Australia himself, and each of X and the father remain on the Airport Watch List pending further order.
BY CONSENT IT IS ORDERED:
9.The child shall communicate with her mother via video on Microsoft Teams each Saturday, Sunday, Monday, Tuesday and Wednesday from 7.00 pm–8.00 pm (AEST), commencing on Saturday 1 July 2023.
10.For the purposes of Order 9, the mother shall send a link to the father’s email address …@... and the father shall facilitate the video communication.
11.For the purposes of Order 9, each of the parents is restrained from causing or permitting the recording of the child’s communication with her mother, without the consent of the other parent.
AND ON A DEFENDED BASIS IT IS ORDERED:
Application to appoint an Independent Children’s Lawyer
12.The father be granted leave to make an oral application for the appointment of an Independent Children’s Lawyer.
13.The father’s oral application for the appointment of an Independent Children’s Lawyer be refused.
Passports, residential address and other documents for X
14.On or before 12.00 pm on 30 June 2023, the father is to do all such things as are necessary for either him or his solicitors to advise my chambers by way of email the details of the current residential address of X.
15.If the X’s residential address changes from that provided by the father pursuant to Order 14, he is to forthwith advise my chambers of the change and of her updated residential address by way of email.
AND IT IS NOTED that for the purpose of Orders 9 and 10 above, a copy of the residential address is not to be sent to the mother or her solicitors.
16.On or before 4.00 pm on 3 July 2023, the father is to surrender to the Sydney Registry of the Federal Circuit and Family Court of Australia, all current passports and any current airline ticket for X, and the Sydney Registry shall retain such documents pending further order.
17.The Sydney Registry of the Federal Circuit and Family Court of Australia is requested to provide a photocopy of the child’s passport to the mother’s solicitors forthwith upon its recept pursuant to the above order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dib & Sader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings as to the parenting of a child, X, born 2021. Her mother lives in Country B. Her father currently lives in Australia and is an Australian citizen.
The mother and father were in a brief relationship and separated prior to X’s birth. It is the mother’s case that up to March 2023, she was the primary caregiver for X and that X lived with her in Country B. She contends that the father removed X during a period of supervised time and took her without the mother’s knowledge or consent to Australia. Her evidence suggests that there are ongoing parenting proceedings involving X in Country B, and criminal proceedings arising from the father’s removal of X. Implicitly, the father disputes those contentions, although his evidence on the identified circumstances is not yet clear.
On 20 June 2023, urgent orders were made on an ex parte basis against the father restraining him from leaving Australia or causing X to be removed from Australia, and placing each of them on the Airport Watchlist. Given those orders were made ex parte prior to the mother’s Initiating Application filed 20 June 2023 being served on the father, the proceedings were listed on the next possible date before me.
URGENT MATTERS FOR DETERMINATION
Appointment of an Independent Children’s Lawyer
At the hearing before me today, the father was granted leave to make an oral application for the appointment of an Independent Children’s Lawyer (“ICL”) to represent X’s interests in the proceedings. That application was refused for the following reasons:
(a)Firstly, arising from the mother’s evidence filed to date I accept there is some urgency in the determination of her application for X to be recovered to her care in Country B and that the appointment of an ICL may delay that process;
(b)Secondly, X is not yet two years old and will be unable to communicate with an ICL; and
(c)Thirdly, having regard to the calibre of the legal representatives who have appeared today, the Court has significant confidence that they will be able to ensure that all relevant information and material that is available to them will be presented before the Court for any hearing.
This determination does not prevent any application for an ICL to be renewed at any time in the future, including on the allocated hearing date.
X’s passport
The mother seeks an order that the father forthwith surrender to the Court all passports for X. I am satisfied that such an order is appropriate, grounded from the mother’s evidence taken at its highest. Although the father takes issue with the integrity of the mother’s evidence, for the purpose of this interim determination and in circumstances where it is not inherently improbable I am compelled to accept it.
It has not been suggested that there will be any prejudice if X’s passport were to be surrendered, in circumstances where there is no contention made by the father that X will travel and where each of the father and X remain on their Airport Watchlist. Indeed, the gravamen of the submissions skilfully made by the father’s legal representatives today were that X will continue to live in Australia.
Again, the father has a capacity to make such application as he considers appropriate to vary or discharge the order made as to the surrender of the passport either upon the next listing, or by exercising the liberty to relist the proceedings as has been granted to each of the parties today.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 June 2023
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