Sameer & Gamil

Case [2024] FedCFamC1F 54

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sameer & Gamil [2024] FedCFamC1F 54

File number: SYC 7224 of 2018
Judgment of: BRASCH J
Date of judgment: 12 February 2024
Catchwords: FAMILY LAW – PARENTING – Where parties entered into final consent orders for the mother to relocate to Country B with the three children on giving 90 days’ notice – Where notice given – Where father held over one child and mother relocated with the other two children – Whether Australia is the habitual residence of the two children in Country B – Whether s 111CD(1)(e) engaged – Whether father can be heard per s 69F despite failing to comply with orders – Whether material change of circumstance per Rice & Asplund (1979) FLC 90-725 – No jurisdiction with respect to two children – Father will be heard – Where, irrespective of the parents’ actions and inactions, separation of siblings is a material change of circumstance for them.
Legislation:

Family Law Act 1975 (Cth) Pt VII 111B ss 64D, 65M, 65N, 69E, 69F, 69ZN, 111CD

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996
Cases cited:

Ahmad & Hadi [2020] FamCA 1041

Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Dautry & Wemple (2018) 341 FLR 105; [2018] FamCAFC 237

Defrey & Radnor [2021] FamCAFC 67

Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23

Langmeil & Grange [2013] FamCAFC 31

LK v Director-General, Department of Community Services (2009) 237 CLR; [2009] HCA 9

McEnerney & McEnerney (1980) FLC 90-866; [1980] FamCA 43

Re LC (Children) [2014] AC 1038

Reger & Hanney [2023] FedCFamC1F 805

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701; [2016] FamCAFC 57
Division: Division 1 First Instance
Number of paragraphs: 78
Date of hearing: 2 February 2024
Place: Brisbane (by video conference)
Counsel for the Applicant: Ms Shea
Solicitor for the Applicant: MCW Lawyers
Counsel for the Respondent: Dr Barnett SC
Solicitor for the Respondent: Swan Lawyers

ORDERS

SYC 7224 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GAMIL

Applicant
AND:

MS SAMEER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

12 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The father’s Initiating Application filed 11 January 2024 is dismissed in so far as it concerns the children Y (born 2010) and Z (born 2013).

BY CONSENT, THE COURT FURTHER ORDERS THAT:

Private or court provided Child Impact Report

2.No later than 4.00 pm today, the mother, through her legal representatives, is to write to Dr C, copied to the father’s legal representative, to enquire of his:

(a)Availability to undertake a Child Impact Report;

(b)Cost of doing same;

(c)Estimated or usual turnaround time to produce Reports; and

(d)Request his response be provided to both parties and include a copy of his CV.

3.No later than 4.00 pm…

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Sameer & Gamil [2024] FedCFamC1F 54
Case
[2024] FedCFamC1F 54
Decision Date

CaseChat Overview and Summary

In the matter of Sameer & Gamil, the court addressed a dispute involving the relocation of three children by their mother, with the father seeking to contest the relocation of two of the children who had relocated to Country B. The father's Initiating Application was dismissed regarding two of the children, Y and Z, due to the jurisdictional limitation imposed by section 111CD(1)(e) of the Family Law Act 1975 (Cth), which precludes the exercise of jurisdiction if the child is habitually resident outside Australia. The court found that the relocation orders had been complied with, thus altering the habitual residence of Y and Z, and concluded that these children were no longer habitually resident in Australia. Consequently, the court had no jurisdiction to make any orders concerning Y and Z.

The court also considered the father's right to be heard under section 69F of the Act, despite his failure to comply with the relocation orders. The court recognised that section 69F allows for a broad discretion to hear an applicant who has not complied with a past order, balancing the applicant's right to procedural justice against public policy considerations. The court determined that the father's opposition to the relocation, although belated, warranted his being heard regarding the child, X, who remained in Australia. The separation of siblings, irrespective of the parents' actions, was deemed a material change of circumstance that justified the father's hearing.

In summary, the court dismissed the father's application in relation to Y and Z due to the lack of jurisdiction under section 111CD(1)(e). However, the father was permitted to be heard regarding X, who remained in Australia. The court ordered the preparation of a Child Impact Report and appointed an Independent Children's Lawyer for X. The matter was to be relisted upon application by the Independent Children's Lawyer.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The father’s Initiating Application filed 11 January 2024 is dismissed in so far as it concerns the children Y (born 2010) and Z (born 2013).

BY CONSENT, THE COURT FURTHER ORDERS THAT:

Private or court provided Child Impact Report

2. No later than 4.00 pm today, the mother, through her legal representatives, is to write to Dr C, copied to the father’s legal representative, to enquire of his:

(a) Availability to undertake a Child Impact Report;

(b) Cost of doing same;

(c) Estimated or usual turnaround time to produce Reports; and

(d) Request his response be provided to both parties and include a copy of his CV.

3. No later than 4.00 pm on Friday 23 February 2024, the parties’ legal representatives are to provide either:

(a) A Minute of Order appointing a private single expert report writer to produce a Child Impact Report and requesting the court provided Child Impact Report orders (below) be vacated; or

(b) Advice that a private single expert could not be agreed upon, in which case, the following orders for a court provided Child Impact Report remain in force.

4. Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.

5. The parties will attend Part 1 of the event by video, using Microsoft Teams, on 11 April 2024, with:

(a) the applicant to attend at 9.00 am (Sydney time); and

(b) the respondent to attend at 10.30 am (Sydney time).

Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.

6. The father and child, X (born 2010), are to attend Part 2 of the event in person at the Sydney registry at 97-99 Goulburn Street Sydney on the morning of 15 April 2024. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.

7. The mother is permitted to attend the Part 2 event by Teams.

8. Further to Order 7 herein, the mother is directed to facilitate the attendance of the children Y (born 2010) and Z (born 2013) on the Court Child Expert at Part 2 of the event by Teams.

9. No later than 4.00 pm on 19 February 2024, the parties must provide their contact telephone numbers and email addresses to …@....

10. Pursuant to Order 4 herein, the Court Child Expert shall provide a written Child Impact Report to the Court and the report shall deal with the following matters:

(a) Any agreement reached between the parties;

(b) Identification of key issues requiring resolution;

(c) Any views expressed by the child/ren and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(d) The impact of the issues/dispute before the Court on the child; and

(e) Any other matters that the Court Child Expert considers important to the welfare or best interests of the child.

11. Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.

12. The Court Child Expert shall be at liberty to inspect any material filed by the parties.

Independent children’s Lawyer

13. Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer is appointed for the child X (born 2010).

14. Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation of the child and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.

15. The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid New South Wales of this order forthwith.

16. Each party make available to the Independent Children’s Lawyer within seven (7) days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

17. Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter.

Re-listing

18. The ICL is granted liberty to apply to relist the proceedings on 48 hours written notice by email to chambers (…@...), and to the other parties.

THE COURT FURTHER ORDERS THAT:

Filing of updated material

19. Within 14 days of the receipt of the Child Impact Report, the father is at liberty (but is not required) to file and serve an Amended Initiating Application and affidavit with respect to the child X (born 2010).

20. Within seven (7) days thereafter, the mother is at liberty (but is not required) to file an Amended Response and affidavit with respect to the child X.

21. The matter be listed on a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not persuaded that the father holding over X when he should have (on his own case) been in the care of the mother changes the situation or habitual residence of the two children who have left Australia as permitted by the orders. I also accept the mother’s submission the father ought not benefit from a situation he created. True, the mother did not seek to recover X in the short window she had, but she seeks that relief now. It will be a matter for another day whether X is recovered to the mother (as she seeks), or not, as may well be what the father seeks. Conclusion on s 111CD Particularly because of the court order that remains in force, I am not satisfied that at the time of the hearing of the matter, Y and Z were habitually resident in Australia. In reaching that conclusion I adopt what was said in LK at [34], being that a court order changed their habitual residence. Upon the mother acting on the relocation orders, that is what has occurred here. The father’s opposition subsequent to the 2018 orders, in and of itself, cannot render court orders futile. He had steps he could take but did not. He has had legal advice on the topic at least from 2022. Given that, under s 111CD(1) of the Act, there is no basis upon which this Court may exercise jurisdiction for a Commonwealth personal protection measure in relation to the two children. Accordingly, the father’s Initiating Application filed 11 January 2024 must be dismissed in so far as it concerns Y and Z. SECTION 69F Section 69F of the Act provides:69F Applicant may be in contemptA court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court having jurisdiction under this Act. Justice Austin discussed the discretion enlivened under s 69F in Dautry & Wemple (2018) 341 FLR 105 at [39]-[41]:39.Section 69F (and in its former iteration as s 66) of the Act was enacted to abolish, in child-related parenting proceedings under Part VII of the Act, the common law rule discussed in Fahmi that applicants in contempt of orders should not be heard in respect of their fresh applications (Leaway Pty Ltd v Newcastle City Council (No.2) (2005) 220 ALR 757 at [53]-[54]). Section 69F had no work to do in either Fahmi or Watson because the litigation before the court in those two cases was not child-related.40.Section 69F is intended to invest the court with broad discretion as to whether an application under Part VII of the Act, filed by an applicant who has failed to comply with a past order made under the Act, is entertained. Its initial purpose was to ensure that applicants would not be shut out from contesting orders in respect of children through operation of the common law rule, which operated as a strict rule with specific exceptions at the time s 69F was first enacted as s 66 of the Act. Now, as a consequence of Fahmi and Watson, the common law rule is applied more flexibly as a discretionary rule in this jurisdiction.41.Nevertheless, despite ousting operation of the common law rule, when the discretion under s 69F of the Act is enlivened, its exercise is motivated by the same type of considerations discussed in Fahmi and Watson and depends upon the balance which must be struck between the applicant’s right to procedural justice and countervailing public policy considerations, the ambit of which is not confined (Watson at [36(g)]). Locking an applicant out of procedural access to a court and the consequent deprivation of the opportunity for substantive relief is a serious step and should not be lightly taken.

Ratio Decidendi

Legal Principle Established

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