Sader & Dib (No 2)
[2023] FedCFamC1F 913
•24 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sader & Dib (No 2) [2023] FedCFamC1F 913
File number: SYC 3358 of 2023 Judgment of: BRASCH J Date of judgment: 24 October 2023 Catchwords: FAMILY LAW – PARENTING – Where mother contends father took child from supervised time in Country B and unilaterally brought the child to Australia – Where father consented to orders for the mother to come to Australia and recover the child with her back to Country B – Where, pursuant to orders, mother advised she would be coming to Australia to collect the child – Where a week after that advice father makes application to travel with the child to an unspecified location in the United States of America, for an indefinite time, to assist his father with unknown surgery – Where travel application ill-conceived and bereft of evidence – Where father deposes to few continuing ties to Australia other than citizenship and an unnamed sister and two children – Where father a Permanent Resident of the United States of America – Where no evidence that the Hague Convention Central Authority of the United States of America would apply to return the child to a parent residing in a non-Hague country – Where high acrimony between parents – Application to travel dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 61DA, 65D(1), 65DAB
Family Law Regulations 1984 (Cth) Sch 1A, 2
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kuebler v Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 82 Date of hearing: 20 and 24 October 2023 Place: Sydney and Brisbane Counsel for the Applicant: Mr Eardley Solicitor for the Applicant: Bevan-Rhys James The Respondent: Litigant in person ORDERS
SYC 3358 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SADER
Applicant
AND: MS DIB
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1.Order 6-9 of the Application in a Proceeding filed by the father on 11 October 2023 be dismissed.
2.Within 14 days of today, the father is to advise the court by email at …@... (copying the mother into the email) whether he wishes to press the balance of the orders sought in the Application in a Proceeding filed by the father on 11 October 2023, and:
(a)In the event he wishes to press the orders, a date for hearing will be fixed;
(b)In the event he does not press for the orders, all outstanding applications will be dismissed;
(c)In the event no advice is received from the father, all outstanding applications will be dismissed.
3.The following orders of the order of 27 July 2023 (as amended 2 August 2023) are varied to delete reference to the mother’s solicitor, being:
(a)Order 13 be varied to read:
Order 8 of the orders made on 29 June 2023 remains in force until the mother
causes her solicitor towrites to the Australian Federal Police advising of the travel arrangements made for the return of the child to Country B AND IT IS REQUESTED that the Australian Federal Police remove the name of X born 2021 from the Family Law Watchlist upon presentation of the child for boarding the nominated flight on the nominated date of travel.(b)Order 14 be varied to read:
The
mother’s solicitormother is to provide written confirmation to the father that the child has departed the Commonwealth of Australia, within 24 hours of her departure, such notice to be provided to the email addresses set out in Order 4.(c)Order 20 be varied to read:
When the mother and the child have returned to Country B, the mother,
through her solicitor, is to advise chambers (…@...) copied to the father’s solicitorand all applications will then be dismissed.
4.The following orders of the order of 27 July 2023 (as amended 2 August 2023) are varied being:
(a)Order 1 be varied to read:
The father is to deliver X to the Brisbane Registry of the Federal Circuit and Family Court of Australia at 9.00 am 25 October 2023
on a time and date nominated by the mother,for the purposes of handing X to the motheror her nominee.(b)Order 2 be varied to read:
The father is restrained by injunction from entering the
internationalterminals of the Sydney and Brisbane airports until such time as he has been notified in writing that the child has departed Australia.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons. I will, if necessary, review the transcript, correct for grammatical errors and amend to make the spoken word more amenable to reading.
This is the father’s Application in a Proceeding with respect to the child, X, born 2021 (“the child”). More specifically, the application concerns a range of parenting orders, as well as “urgent” international travel orders for the father and child to travel to the United States of America. The father’s cover letter with respect to urgency filed 11 October 2023 said this:
As outlined in [Mr Sader’s] affidavit, his father/the paternal grandfather is very ill and needs to urgently travel to USA for medical treatment and requires [Mr Sader] to travel with him. This will necessitate the child accompanying [Mr Sader] to the USA and stay until his father is fit to return to Australia.
We urgently require this matter to be heard so [Mr Sader] can make the necessary arrangements for the child to travel with him as he accompanies his father for the emergency medical treatment available in USA.
The father’s urgent travel application is against a backdrop of consent orders dated 27 July 2023 (amended 2 August 2023), which relevantly provide:
BY CONSENT IT IS ORDERED:
3.That the child [X] born […] 2021 be returned to the jurisdiction of [Country B].
...
6. Upon delivery of the child to the mother, the mother is permitted to remove the child from the Commonwealth of Australia and return to [Country B] with the child.
…
11. The father is restrained by injunction from placing any restraint on the mother departing [Country B], for the purposes of this order.
12.The father is restrained by injunction from communicating with the Department of Home Affairs in relation to the mother’s application for a partner visa, for the purposes of this order.
...
THE COURT NOTES THAT:
…
C.The father agreed, in these proceedings in the Commonwealth of Australia, that it is in [X’s] best interests to return to [Country B].
It is common ground that the father is to deliver the child to Child Court Services tomorrow at 9.00 am to this [Brisbane] Court. The mother is to collect the child thereafter.
I had listed the application for the urgent travel orders on Friday just gone. However, the father filed a further affidavit late the night before. His counsel Mr Eardley, no doubt on instructions, elected to adjourn the matter to today [Tuesday 24 October 2023] so he could read and rely upon that late affidavit. Quite appropriately, Mr Eardley submitted that the mother needed procedural fairness. I pause to observe the mother is acting for herself.
The child’s mother, Ms Dib was born in 1993 (“the mother”). She lives and works in Country B. The mother is a Country B Citizen. It is the mother’s case that up to early 2023, she was the primary caregiver for X and that X lived with her in Country B. She contends that in early 2023 the father removed X during a period of supervised time in Country B and took the child without the mother’s knowledge or consent to Australia.
The child’s father, Mr Sader was born 1980 (“the father”). He is currently in Australia after travelling with the child from Country B earlier this year. The father became an Australian citizen, it would seem, in 2015 (Annexure G to the mother’s affidavit filed 18 October 2023, p.57). I am told he has Permanent Residency in the United States of America.
With respect to the mother’s allegations about the child’s removal from Country B, the father deposed to bringing the child to Australia. He said they (he and the mother) had long planned to reside in Australia. He said the mother had a Visa to that effect. However, with respect to the actual trip this year, the father does not depose to having the mother’s consent or court order to do so. Indeed, he said in his 11 October 2023 affidavit that he was:
...concerned about the mother’s capacity to substantially spend time with and care for [X] as she was studying full-time and was leaving [X] in the care of multiple neighbours. As a result, I brought [X] to Australia in [early] 2023….
(Father’s affidavit filed 11 October 2023, paragraph 8.5)
Today, I cannot resolve the manner in which the child came to Australia. What is plain is that there is a consent order of recent origin about the child returning with the mother to Country B, and the notation where the father recorded he agreed it was in the child’s best interests to return.
The child was born in Country B and is a Country B citizen. I am told the child is also an Australian citizen by descent. There is no evidence before me that the child can actually enter the United States of America on her current Country B passport. Thus, the father sought consequential orders to obtain an Australian passport for the child.
The parties married in 2020 in Country B and separated on 11 May 2021, obviously prior to X’s birth.
The mother’s evidence is that that there are final parenting orders made for X in Country B, and that the father and paternal grandmother have been sentenced to a term of imprisonment on account of the father removing the child from Country B. I have no court orders to that effect and will not thus place any weight on what the mother said about imprisonment. It does however seem common ground that there were Country B proceedings with the father saying the mother’s refusal to let him spend time with X meant he had to make an application in that country.
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 with respect to X. He was not represented at that time. He only sought an order for sole parental responsibility. Contrary to what the mother contended about Country B final parenting orders, the father’s Initiating Application indicated there were no proceedings or orders about the child.
It is unclear whether the father’s Initiating Application was served on the mother. The mother says it was not, and that she found out about court by emailing the court - I assume to a generic, publicly available court email address. The matter obviously came to the mother’s attention somehow, because on 16 June 2023 the mother filed a Notice of Address for Service.
Curiously, the very next day on 17 June 2023 the father filed a Notice of Discontinuance.
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. Orders were made on an ex parte basis restraining the father from leaving Australia with the child or causing X to be removed from Australia. Both the father’s and child’s names were placed on the Airport Watchlist. Given those orders were made ex parte and before the father had been served with the mother’s Initiating Application, the proceedings were listed on the next possible date, being 29 June 2023 before Justice Campton.
In her Initiating Application, the mother also sought orders for the return of the child to Country B and orders for communication between herself and the child until the child was returned to Country B.
On 29 June 2023, Justice Campton made orders that the father advise his Honour’s chambers of the details of the child’s current residential address, to surrender the child’s passport to the Sydney Registry and orders by consent for the child to communicate with the mother. His Honour also made procedural orders with respect to the mother’s application for X’s return to Country B and listed the matter for hearing on 27 July 2023. It was ultimately listed before me for hearing.
His Honour also ordered that on the day of the hearing before me at the end of July 2023, the child be taken to the Court Child Services on level two of the Sydney Court building. It subsequently turned out the father and child were staying in Queensland.
At the hearing before me on 27 July 2023, the father agreed to the child’s return. Given Justice Campton’s order about the child being brought to the Court Child Services, it was a surprise that the mother was not present in court. With the father’s agreement (and consequent court order), the mother could have taken the child back to Country B on the next available flight. I was told that even though the mother was a health professional, she did not earn enough money to buy airfares and secure accommodation by the time of the 27 July 2023 hearing.
It transpired in her more recent affidavit that the mother’s Visa status was uncertain, and she had to apply for permission to do so [enter Australia]. I am not interested in the parties’ competing contentions whether she had a Visa dated mid-2021 for entry before mid-2022. The mother said that application, or others like it, were a fraud by the father. The father said they had intended to come to Australia. The intrigue about the provenance of the Visa and past application processes does not need to be determined today.
Instead, the mother attached the 27 July 2023 court order to communications with Home Affairs to support her application for permission to enter Australia commencing, it would seem, on 31 July 2023. The mother followed up, at least twice, with Australian authorities in August 2023. It is clear Attorney General’s Department and similar officers were still considering the matter as at 1 and 13 September 2023 (Annexure A to the mother’s affidavit filed 18 October 2023, p.21 and p.23). The mother annexed many documents in support of her efforts to secure a Visa/[permission] from the relevant authorities, which I accept to be so.
The father said the mother had delayed [in coming to Australia] and that was a reason why I would allow a revisiting of the wider parenting orders. It is clear to me the mother could not control the timing by which the Department of Home Affairs, Attorney General’s and the like replied. That was a matter solely within their determination.
Upon getting permission to travel, the mother then gave her work the required one month’s notice to take leave. On 21 September 2023 the mother booked flights to Australia for travel in October. The mother then contacted the Court Child Services of the Brisbane Registry on 29 September 2023 to arrange the changeover pursuant to the orders of 27 July 2023.
On 4 October 2023, Court Child Services confirmed the changeover could be facilitated on 25 October 2023 (Annexure B to the mother’s affidavit filed 18 October 2023, p.28) and the Commonwealth Courts Portal was updated to reflect same (Annexure C to the mother’s affidavit filed 18 October 2023, p.29-30). The Portal is accessible to the parties.
On 11 October 2023, a week later, the father filed the Application in a Proceeding that is before me today. That is, he applied to travel to the United States for an indefinite period after the mother had arranged with Child Court Services to collect the child. He says, or I infer he says, that is a coincidence.
It was common ground in the previous hearing before me that Country B is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), 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).
Today’s urgent application
From the father’s perspective, he sought the following orders on an urgent basis:
…
6.That the Father and the child’s name be removed from the Family Law Watchlist and the Australian Federal Police allow the Father and the child to travel overseas to USA and accompany the Father’s parents for a medical emergency.
7.That the child’s [Country B] passport be released to the Father by the Registrar of Court, Brisbane Registry.
8.The Father is permitted to apply for an Australian passport for the child from the Australian Passport Office for [X] to allow her entry to the USA as an Australian citizen and for her return to Australia.
9.The Father to provide his itinerary and contact details whilst residing in USA to the mother and to the Mother’s solicitors.
…
(As per the original)
(Application in a Proceeding filed 11 October 2023, p.6)
The mother’s Response was filed on 18 October 2023. She sought the following orders:
1. That the respondent have leave to photocopy the material produced pursuant to subpoena by the Department of Foreign Affairs and Trade and [C Medical Centre].
2. That the application in a proceeding filed [Mr Sader] on 11 October 2023 be dismissed.
(Response to an Application in a Proceeding filed 18 October 2023, p.3)
Material
The father relied upon:
·Application in a Proceeding filed 11 October 2023;
·Affidavit of Mr Sader filed 11 October 2023; and
·Affidavit of Mr Sader filed 19 October 2023.
The mother relied upon:
·Response to an Application in a Proceeding filed 18 October 2023; and
·Affidavit of MS Dib filed 18 October 2023.
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to s 61DA (equal shared parental responsibility) and s 65DAB (re parenting plans and thus irrelevant here). Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
Geography means this child has not been having a meaningful, physical relationship with both parents. Instead, she was living with the mother in Country B and the father was having, it seems, supervised time. However, when the father brought her to Australia the child was then living with the father and having communication with the mother, albeit, at just two years old, I cannot accept electronic communications would promote a meaningful mother-child relationship. Tomorrow, the mother ought be taking the child back to Country B. The father says he must go to the United States to assist his father. On any permutation, the child will not be having a meaningful, regular, experiential relationship with both parents. By dint of the parties’ choices, that is not something I can solve.
That said, the father had participated in Country B family court proceedings and had the benefit of a time order in his favour. No one made submissions about whether the father could re‑litigate wider parenting proceedings in Australia given finalised parenting proceedings had occurred in Country B. As no one addressed that, I will not advance the idea any further.
Travel
Matters thought likely to be relevant when considering whether to permit overseas travel were considered as long ago as 1978 in Kuebler v Kuebler (1978) FLC 90-434 at 77,205-77,206, where Asche SJ said:
In my view, the considerations that should be given to an application which
involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these:(a) The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the application;
(c) The effect on the child of any deprivation of access;
(d) Any threats to the welfare of the child by the circumstances of the proposed environment;
(e) The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to jurisdiction would be honoured.
More recently than that, in Line & Line (1997) FLC 92-729 (“Line”) the Full Court identified the “obvious considerations” for a travel application such as this at [4.49]-[4.51], which I summarise as follows:
(a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence here of close family or friends);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);
(c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, all the residents of close family and/or personal friends there);
(d)Whether the country of travel is a signatory to the Hague (Child Abduction) Convention; and
(e)The financial circumstances of the parties.
Often, a parent wishing to take a child overseas will offer a security either in cash or by reference to a property. This gives the travelling party an incentive to return, and in the event of a non-return gives the remaining party funds with which to prosecute their case both in Australia and overseas.
There is no evidence before me that the father has proffered any security. There was mention of that from the Bar Table, but over the father’s two affidavits and application there is no mention of a security. That does not help the father.
However, even if the father did [offer security], I have no evidence how the mother – if in Country B – would access such security here in Australia.
The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence here of close family or friends)
The father deposed he and the child are staying with the paternal grandparents. He deposed the child loves spending time with her paternal family. Whilst all of that might be so, the father told the Court he and the child were staying in or about Brisbane, but:
(a)He listed his residential address in his Application in a Proceeding as Suburb D, Victoria. That may or may not be his solicitor’s address;
(b)In his 19 October 2023 affidavit, the father said he cannot disclose his address for safety and security concerns with respect to the mother having it. I do not know what that unparticularised conclusion means;
(c)The medical report for a doctor said to be treating the paternal grandfather listed Suburb E as the doctor’s address, and an address at Suburb F for the paternal grandfather (Father’s affidavit filed 11 October 2023, p.11). If that is the address, then the father has not taken any steps to protect it;
(d)In some Home Affairs documents dated 18 May 2023 the father provided a State G, United States of America address (Annexure F to the mother’s affidavit filed 18 October 2023, p.36);
(e)In other Homes Affairs documents of 5 April 2023, the father listed an address in Suburb H New South Wales (Annexure F to the mother’s affidavit filed 18 October 2023, p.47-48); and
(f)In another document produced by or for the father, dated 20 October 2022, the child’s residential address was listed at a location in State G (Annexure F to the mother’s affidavit filed 18 October 2023, p.50). There is no evidence before me that the child has actually visited the United States of America let alone lived in State G.
Further, the father also deposed that his parents “are visiting Australia” (Father’s affidavit filed 11 October 2023, paragraph 20). I am not told from where they are visiting. He says they had a health check in early 2023 “before flying to Australia” (Father’s affidavit filed 11 October 2023, paragraph 21). I am not told from where they were flying. The mother deposed they are Country B citizens and had lived in the United States of America getting a Green Card, but overstayed their time in that country. The mother said their Green Cards expired in 2020. The father said his parents have valid Green Cards. That dispute over Green Cards respectfully misses the point – my focus is not on the paternal grandparents’ [travel] status with the United States of America, but whether it is in the child’s best interest to leave the Commonwealth of Australia with the father.
The father deposed that in September 2023, his father (the paternal grandfather) had symptoms of a medical episode (Father’s affidavit filed 11 October 2023, paragraph 22). The father added:
22.…He has also been advised to resume his […] treatment plan under full medical coverage and he is required to be in the United States in [late] 2023 to receive urgent medical treatment. There he will receive full life, medical, financial and physio support to retain and sustain his […] condition to minimize the risk of [a medical episode]. He does not have Medicare in Australia and he has exhausted all his travel health insurance limits.
23. This is a matter of life and death for my father we cannot risk waiting here in Australia.
24. My parents have only two children, myself who is the elder to my sister who is an Australian and living in Queensland with her husband and two children aged seven (7) and two (2) years old without any further family support. Due to her family situation, she does not have any capacity to travel with my father to the USA.
25.I must take care of my father and accompany him to the USA. My parents have two children. My mother does not speak English and relies on my father and me to communicate. My father cannot rely on my mother for any communication in public at hospitals, clinics, airports, public transportation, and other necessary matters. I am the only appropriate main carer and travel companion for my parents.
26.My father must travel to the USA in [late] 2023 with myself, my child, and my mother. We do not have much time to entertain more risks to his life. I will continue to follow the court order that the mother has the same internet communication with [X].
(Father’s affidavit filed 11 October 2023, paragraphs 22-26)
That is the extent of the evidence before about urgency and travel to the United States. The father’s first affidavit then went on to parenting arrangements such as living arrangements in Australia, none of which he asked me to consider in the letter of urgency.
The medical evidence before me in the father’s first affidavit, such as it is, comprised a letter from Professor K on the letterhead of J Health Service to a General Practitioner dated 15 September 2023. It says nothing about “life or death” as the father deposed. It says nothing about the urgent need for surgery. It says nothing about the United States. It concluded:
I shall investigate him further with a [test and monitor]
Once again, many thanks for referring [Mr L]
(As per the original)
(Father’s affidavit filed 11 October 2023, p.12)
Another letter apparently from a Dr M of N Medical Centre dated 28 September 2023, said:
He is being investigated for possible [health condition] and awaiting [specialist] review […].
This will limit his ability to travel frequently.
(Father’s affidavit filed 11 October 2023, p.13)
An imaging report on 5 September 2023 said:
Further assessment with a CT scan is recommended.
(Father’s affidavit filed 11 October 2023, p.15)
After this letter, numerous clinical and testing notes are annexed, none of which support the idea this is “life and death” as the father deposed. That is not to diminish the symptoms that are referred to therein, but none of the reports suggest the paternal grandfather’s condition is as the father claimed in his affidavit. Nothing in the medical documents supported the father’s claim that “he is required to be in the United States in October 2023 to receive urgent medical treatment”. There is nothing in the material that helps me understand how the paternal family group can afford to fly here, stay here and then fly to America and stay there, but not afford for example, private (that is non-Medicare) health care here. There is nothing in the material that explains why the child has to attend too, when the father says he has a sister in Queensland. I am not persuaded by the father’s claims about “life and death” support or even what surgery is claimed to be required, much less the father and thus the child having to accompany the paternal grandparents. There is no evidence before me that there is not a single hospital in all of the United States of America that cannot organise or facilitate translating services. There is nothing stopping the paternal grandparents travelling; my concern and focus is on the child.
The father’s 19 October 2023 affidavit added nothing of substance to this issue.
Yet, even if I am wrong on an assessment of the medical needs, there is no reliable evidence before me about the father’s continuing ties to Australia, save for Citizenship and a sister in Queensland. I have no evidence about property and/or business interests in this country. The father says he is unemployed here. There is no reliable evidence before me that only the father (and thus the child) can accompany the paternal grandparents to the United States of America. All I have is a bald assertion about that. I have no evidence from the unnamed sister, who apparently cannot travel. I have no evidence from the paternal grandfather about anything. There is no reliable evidence before me about the need for surgery, much less in the United States. I do not know where they would all be living, nor, more so, the arrangements proposed for the child when there. I do not even know where the paternal grandparents habitually reside.
I also do not know who looked after the child when the father left the country for a period in mid-2023 (Annexure G to the mother’s affidavit filed 18 October 2023, p.58).
Apart from all of that, critically, there is no evidence before me that the child can enter the United States of America, especially given the mother has not signed any consent to do so. I accept the father seeks an ancillary order for an Australian passport, but his application is brought on the basis of urgent travel. On the father’s case, then he would have to wait for a passport for the child, which seems to be at odds with his “life or death” proposition. Put differently, there is nothing stopping the father going to the United States of America with his father for whatever is required. He travelled in mid-[2023] and, it would seem, without the child. There is also nothing stopping the father going to the United States of America with his father for whatever is required if the child returns to Country B with the mother tomorrow.
Put frankly, the father deposes to nothing much of any substance which satisfies me that he has continuing ties here to feel any need or motivation to come back to Australia with the child. I am not persuaded by the father saying so.
The father does not even give a proposed return date to Australia, even in an approximate way. He gives me no information about possible flights or itineraries, just the general proposition he will do so if allowed to travel.
Given the paucity of the evidence with respect to the father’s ties to Australia (such as a job, or real estate or business interests) for all I know, when he and the child leave Australia, that will be it and they will not return. I accept he has an unnamed sister with two children “in Queensland”, but that is as high as that evidence goes.
If the child left Australia and did not return, that may thwart the child’s relationship with the mother and the mother’s ability to move on the current order to have the child returned to Country B, to which the father consented a little while ago. Indeed, the mother is now in Australia and has arranged to collect the child from Child Court Services tomorrow – an arrangement to which the father consented. I have already referred to the notation in the orders.
The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues)
The level of conflict is high. The parents are in dispute about the provenance of a Visa - the mother saying it is a fraud, the father saying they planned to move to Australia. They are in dispute about the paternal grandparents’ status to enter the United States, or not. Similarly, the mother accused the father of abducting the child from supervised contact in Country B and bringing her to Australia. The father said he brought her [the child] here because he was concerned about the mother’s capacity to care [for the child].
Whilst the father agreed to the child’s return to Country B not all that long ago, he is now very critical of that country:
11. [X] is living the best of her life from all aspects of health-wise, early education going to Childcare, cognitive awareness and learning fast, as well as mental health by being very well-looked after with me compared to the low-level of health, education and high intense of crime as well as discriminations against the [religious] minority in [Country B].
(Father’s affidavit filed 11 October 2023, paragraph 11)
Yet only a couple of months ago the father agreed to the child being returned to Country B. Thus, his apparent change of heart provides a motive for the father not to return to Australia and therefore prevent the child’s return with the mother to Country B.
Continuing the theme of conflict, the father also sought to cancel his sponsorship of a visa for the mother speaking of her in disparaging terms (for example “gold digger”) to the authorities and claimed she [the mother] had abandoned him and the child and disappeared without a trace, which cannot be true. This all speaks to the father’s negative view of the mother. The father also complained the mother did not respond to his requests about her travel plans. Whilst that might have been polite, it was not required by the consent orders of 27 July 2023.
The father is a Permanent Resident of the United States of America. That gives him a freedom and latitude to stay in that country well beyond, say, a 90 day tourist stay.
Thus, I am concerned that the father may have motive not to return to Australia where there is an order in place facilitating the child’s return to Country B.
I am also not comforted by the many addresses given by the father for he and the child as listed earlier in these reasons. Even if true, none of that suggests any permanency.
When the matter was before me on Friday, the father raised the recent civil unrest in the region near Country B. I indicated to the father’s counsel I would not engage with what was going on there, save to say parts of the region have been long fraught, and the father consented to the return to Country B (not the area of civil unrest) about 12 or so weeks ago.
The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, all the residents of close family and/or personal friends there)
As observed, the father is a Permanent Resident of the United States of America, which gives him considerable freedom and latitude.
The mother is in Australia and is due to collect the child tomorrow, pursuant to the consent order. The easiest way for the father to frustrate that order would to be outside the jurisdiction of this court. If the child is not in Australia (Brisbane in particular) tomorrow morning, then the return order will be frustrated. That is a motive to remain in any other country. The mother though, tomorrow, will have certain enforcement options available to her if the father does not make good on the consent order he entered into.
I am told nothing about the United States other than the “life or death” surgery there. The paucity of the evidence has been set out above. I am also not satisfied that the father would remain in the United States, as opposed to using it as a launching pad to go elsewhere with the child. The father said this of the mother, which is equally apposite to him on the application he now makes:
8.2…the Australian Court has no authority on the mother to Order the mother to give me access to [X] once she leaves Australia.
(Father’s affidavit filed 11 October 2023, paragraph 8.2)
Whether the country of travel is a signatory to the Hague (Child Abduction) Convention
The United States of America is a Hague Convention country. However, there is no evidence before me that the United States Central Authority would bring an application to return the child to a non-Hague country such as Country B where the mother resides.
As said in Line and observed above, I must also be alert to the prospect that if the father and child go to the United States, they could then go elsewhere. That would have the effect of the mother again having to find the father and child’s locale and institute proceedings – if she had standing.
The financial circumstances of the parties
The father gives me no evidence about this, save perhaps for having funds to travel from Country B to Australia, via City P and Country R, with the child, stay here, and travel to the United States and stay there for an indefinite period. Yet for all I know, the paternal grandparents may be funding this. I have no idea; I would just be guessing. The father has not apprised me with any information about his financial circumstances.
The mother is in Australia to collect the child. That is against a backdrop of earlier submissions about her poor financial status to immediately fund her return flights here and the child’s flight to Country B in July. The mother also deposed she receives the equivalent of AUD$186 per month in what sounds like child support, but that the father has not paid any (Mother’s affidavit filed 18 October 2023, paragraph 63). There is no evidence before me that satisfies me that the mother has the finances to chase the return of the child in another country.
Discussion and Disposition
This is, respectfully, an ill-conceived application for international travel, bereft of evidence to support the considerations relevant to a matter of this kind.
What was said by the father about (a) his father’s “life or death” need for surgery, and (b) that he (the child’s father) is the only source of translating, was simply not made out on the father’s evidence.
Even if either/both were made out, for the reasons expressed earlier, the father has not demonstrated any continuing ties to Australia, say by way of property or business interests or employment which might entice him to come back to Australia [with the child]. I also have a mosaic of addresses for him and the child. The parent’s relationship is sufficiently acrimonious to motivate the father to leave Australia and not come back. Once in the United States, nothing would stop the father from travelling with the child to elsewhere in the world, without notice to the mother. There is no evidence before me that the Central Authority in the United States of America would assist the mother recover the child to a non-Hague country, being Country B. There is no evidence before me that the child can even enter the United States of America on her current passport, let alone the arrangements proposed for her once there.
On the other hand, the parties engaged in Country B family court proceedings, and I am told without demur that they have final orders. In terms of the child having a meaningful relationship with both parents, then another court of another jurisdiction has engaged with that.
If the father and child left Australia and did not come back, the child’s relationship with the mother may be significantly hindered, if not completely curtailed. Acknowledging the father very recently consented to the child’s return to the mother in Country B, such a potential curtailment of the mother-child relationship cannot be in the child’s best interests.
The application, in so far as it concerns urgent international travel, will be dismissed.
I will vary some of the 27 July 2023 orders to remove the references to the mother’s solicitors, so it will be the mother who will give the relevant notifications. I will also add the time and date to Order 1, because it [changeover] is 9.00 am tomorrow morning, and I will enlarge the restraints about airports to be Brisbane and Sydney terminals. Sensibly, this morning Mr Eardley said he could not be heard against that if I was against him on the travel.
I will also make an order that the father may consider his position and advise the Court, copying the mother, whether he wishes to press the balance of his [parenting] orders and if not, then all outstanding applications will be dismissed. I will give him 14 days to consider his position.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 25 October 2023
0
2
4