State Central Authority and Fouadi

[2010] FamCA 12

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & FOUADI [2010] FamCA 12

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – children taken from USA – where the father did not consent to the children being taken from the USA – where mother’s evidence was accepted – issues of domestic violence – whether grave risk to children should they be returned – issue that children may being taken to Lebanon – whether children will be medically taken care of – issue of whether children will be adequately financially supported on return to USA – satisfied that there is a grave risk – children should be returned to the USA upon certain conditions being met

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986
Family Law Rules 2004

D.P. v Central Authority; JLM v Director General Department of Community Services (2001) 206 CLR 401

APPLICANT: Director General, Department of Human Services and Community Services as State Central Authority

RESPONDENT: Ms Fouadi

FILE NUMBER: SYC 6877 of 2009

DATE DELIVERED: 22 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tocker

SOLICITOR FOR THE APPLICANT: Legal Services Unit, Department of Human Services and Community Services

COUNSEL FOR THE RESPONDENT: Ms Hartstein

SOLICITOR FOR THE RESPONDENT: Johnson Vaughan

Orders

1. Upon the compliance, within a period of six weeks from the date hereof, by the applicant and/or the father Mr Fouadi with the conditions specified in these orders, then the following orders for the return of the children H (male) born … SEPTEMBER 1997 and M (male) born … December 2002 are to operate:

   (a)The applicant and respondent are to make such arrangements as are necessary to ensure the return of the children H (male) born … SEPTEMBER 1997 and M (male) born … December 2002 with the mother Ms Fouadi to the United States of America (“the USA”) as soon as reasonably practicable.

   (b)Upon arrival in the United States of America pursuant to these orders the mother is to forthwith cause the passports for the children H and M Fouadi to be lodged with the officer who is responsible for the safekeeping of such documents in the Los Angeles Superior Court.

2. Upon compliance with the conditions specified in these Orders, the applicant is to collect from the Registrar of this Court the passports for each of the children and provide those to the mother at a place and time deemed appropriate by the mother to enable the return of the children to the United States of America. 

3. Upon the conditions set out in these orders being complied with the applicant is to forthwith cause the re-listing of the matter for the purposes of having the order, which placed the children’s name on the P.A.S.S. Alert System at all Australian international arrival and departure points, removed.

4. In the event of the conditions specified in these orders not having been satisfied within a period of 6 weeks from the date hereof, then all orders of this Court placing the children’s names on the P.A.S.S. Alert System are to lapse.

5. A sealed copy of these orders is to be served on the Commissioner of the Australian Federal Police and other appropriate officers by the applicant as soon as possible.

6. The mother is to forthwith and expeditiously ascertain from the USA (including any embassy or Consulate located in Australia) her entitlement to return to the USA and live there for a period of not less than six months commencing within two months from the date of these orders. In the event that the mother is required to make an application to be able to reside in the USA for a period as specified in this order, then she is to make such application expeditiously and otherwise do all things reasonably asked of her to satisfy the USA authorities in relation to that application.

7. Should the mother fail to comply with the preceding order, or any part thereof, then the applicant may apply for a variation of the conditions made herein and for orders for the immediate return of the children to the USA. Any such application is to be made to Justice Le Poer Trench if he be available.

8. In the event of the mother being unable to secure the necessary permission to live in the USA for a period of not less than six months commencing from a point in time eight weeks from the date hereof, then the order requiring the return of the children to the USA is discharged.

9. Each party has liberty to apply to seek further orders which may be necessary to implement the order for return or any other order which may arise as a result of circumstances which occur prior to the departure of the children and the respondent from Australia

10. Within 14 days from the date hereof the respondent mother is to provide to the applicant details of the account into which the father is to deposit the sum of USD$20,000 as required in the Pre-Conditions to Return of the Children as set out herein.

11. For the purpose of the pre-condition number 5 as set out hereunder the respondent mother is to advise the Applicants solicitor in writing within seven days from the date hereof whether the return tickets to the USA she holds for herself and the children remain valid for a period of 12 weeks from the date hereof.

12. The court notes the father’s undertaking given through the applicant as follows:

    (a)The father agrees to pay for H’s medical expenses and to facilitate this:

    i.The mother shall provide all authorities necessary to allow the father to speak with H’s treating medical practitioners about H; and

    ii.The mother shall direct H’s doctors to forward all invoices for H’s treatment directly to the father and the father shall pay for H’s medical treatment directly to the doctor.

pre-conditions to be satisfied

1. On or before the expiration of six weeks from the date hereof the father and or the applicant is to cause the following pre-conditions to the order for the return of the children to the USA to be complied with.

   1.Mr Fouadi (“the father”), obtain from the Los Angeles Superior Court the following orders to continue pending further order of that Court.       

   (a)That the father and mother not remove H born … September 1997 and M born … December 2002 (“the children”) from the county of Los Angeles in the State of California;

   (b)That the Temporary Orders made on 24 September 2009 granting custody of the children to the father be vacated;

   (c)That the mother and the father have joint custody of the children;

   (d)That the children live with the mother;

   (e)That the father have reasonable supervised visitation, such visitation to be supervised by the children’s aunt, K Fouadi or other relative as agreed between the mother and the father.

   (f)That the father be restrained from approaching, threatening or harassing the mother or members of her family;

   (g)The father be restrained from contacting the mother. If the father seeks to contact the mother regarding the children, the father shall do so by speaking to the mother's sister K or the mother's brother-in-law A Fouadi.

   2.The father is to obtain from the Los Angeles Superior Court (and the applicant is to provide same to the respondent) evidence that the Court has noted his undertakings:

   (a)Not to approach the children outside of the times agreed for supervised visitation;

   (b)Not to approach, harass, threaten or otherwise contact the mother except through family members for the purpose of organizing supervised visitation.

   (c) Not to move the Court for further orders relating to the children once they have returned to the USA until the Court hearing any application by the father has had an opportunity to hear from the mother.

   3.The father is to do all things necessary to cause withdrawal of all criminal and/or civil process charging the mother with kidnapping or child abduction and obtain from the Los Angeles Superior Court or other court of competent jurisdiction or the Director of Public Prosecutions for the State of California, evidence that all such process has been withdrawn or dismissed.  Such evidence to be provided by the applicant to the respondent.

   4.The father deposit into a bank account nominated by the mother to the Applicant USD$20,000.

   5.In the event that the respondent/mother and children's return flights from Sydney to Los Angeles are no longer valid, the father is to, no later than 28 days from the date hereof pay for the mother and children's flights from Sydney to Los Angeles.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6877 of 2009

Director General, Department of Human Services and Community Services  as State Central Authority

Applicant

And

Ms Farquar

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application under the Family Law (Child Abduction Convention) Regulations 1986 filed on the 13^th of November 2009 by the Director General of the Department of Human Services and Community Services.  That application names Ms Fouadi as the respondent and seeks orders for the return to the United States of America of two children namely H (male) born in September 1997 and M (male) born in December 2002.  Orders are further sought against the respondent who is the mother of the aforementioned children.

2. It is the applicant’s case that the mother wrongfully removed the children from the United States of America on or about 5 September 2009. 

3. The issues identified in the case by the respondent are as follows:

   1.Were the children wrongfully removed from the United States of America.

   2.Did the Father consent to the children being removed from the United States of America.

   3.Is there a grave risk that the return of the children under the Convention will expose the children or either of them to physical or psychological harm or otherwise place the children in an intolerable situation.

   4.If the children are ordered to be returned what conditions, if any, should be imposed as prerequisites or otherwise to the return of the children.

BACKGROUND FACTS

1. The following appear to be non-contentious background facts. 

2. The father, Mr Fouadi, was born in 1968 in Lebanon.  The mother, Ms Fouadi, was born in 1976 in Australia.

3. In about 1990 the Father moved to the United States and has been a resident of that country since that time.  In 1992 the father and mother underwent an Islamic ceremony which was said to be a ceremony of marriage.  That ceremony took place in Australia. 

4. The father and the mother are closely related (first cousins). 

5. In 1992 following the Islamic ceremony in Australia the mother moved to California to live with the father.

6. In February 1994 the father and mother married in a civil ceremony in the United States of America. 

7. In 1994 the parent’s first child N was born. 

8. In 1997 the parent’s second child H was born.

9. In December 2002 the parents’ third child M was born.

10. In July 2005 the mother and all three children travelled to Lebanon for a holiday.  The father did not accompany them on that trip.

11. In early 2006 the father spent one month in Lebanon.  The mother and children did not accompany him.

12. In February 2009 the child H was diagnosed with delayed bone development.

13. In May 2009 the mother and father separated. 

14. On the 17^th of August 2009 the father wrote to the real estate agent responsible for the property occupied by the mother and children requesting the removal of his name from the lease contract beginning the 17^th August 2009.  He said that he no longer lived at that address.  He said he had not lived at the address for at least five months.  He advised that from the 17^th August 2009 he would be no longer responsible for any payment for the apartment. 

15. On the 26^th August 2009 an e-ticket was issued for the airline V Australia in Sydney providing for the mother, M and H to travel from Los Angeles to Sydney departing Los Angeles on 30 August 2009.  The ticket was for a return flight.

16. By his affidavit sworn on the 9^th January 2010 the father says he will withdraw the felony charges against the mother if the children are returned to the United States of America. 

DETERMINATION OF THE ISSUES

1. Were the children wrongfully removed from the United States of America by the mother; and

2. Did the father consent to the mother removing the children to Australia permanently.

1. The respondent argues that there was no wrongful removal of the children because the father had consented to the mother removing the children prior to their departure. 

2. There is an issue between the parties as to whether the father consented to the removal of the children from the United States of America.  The mother’s case is (as set out in paragraph 45 of her affidavit attached to her response) that in about mid-August 2009 the father returned to the United States of America from Lebanon.  She said that he telephoned her and said “I am not paying nothing no more”.  The mother asked “who is going to pay for your kids?”  The father replied “you go to Australia, your parents can take care of you and your kids.  I don’t want any of you guys anymore.  I want you and kids out of life.  You can all go to hell and get our [sic] of my life.”  The father denies that he authorised or instructed the mother to take the children to Australia. 

3. In support of the mother’s contention that the father instructed her to remove herself and the children permanently to Australia she relies on other evidence. 

4. The mother relies on the affidavit of Mr R sworn the 18^th of December 2009.  In paragraph 8 of that affidavit Mr R recites a conversation he had with the father sometime after 3 July 2009.  He says that the father asked him to accompany the father to a place in Lebanon (where they both were at the time) called ….  The father told Mr R, “I want you to call me my uncle (the respondent’s father) and tell him I have divorced his daughter”.  Mr R asked “what do you want from me?” the father said “just tell her father that I divorced [the mother] one week ago”.  Mr R said to the father “are you silly.  You got no brain.  This is all your family and blood.  Respect what you got”.  The father said “I don’t give shit to anybody I am not responsible for her life, for her kids, for her bills”.  He further said “I don’t give a shit for her, her bills and kids.  If she doesn’t want the kids I am getting them here to Lebanon.  I am not responsible for anything at all.”

5. Mr R in his affidavit said that he did speak to the mother’s father and said to him “I am sorry to give you this bad news but [the father] said he divorced your daughter one week with a sheik in California.”  I note that it is the mother’s case she has never received any divorce papers.

6. In paragraph 6 of Mr R’s affidavit he said he was present when the father was meeting with the Imam.  This meeting took place in Lebanon somewhere around 3 July 2009.  Mr R says that he heard the father say to the Imam “do want you can to bring my wife back here with the kids, she got no rights here and I keep everything under control.”

7. The mother relies on an affidavit by her father Mr S sworn 18 December 2009.  In paragraph 14 of that affidavit Mr S attests to a conversation with D Fouadi (I understand to be the father’s brother).  He said to D Fouadi “please tell [the father] and get back to me what he wants to do with the kids if he divorces, does he want to take the kids back with him to Lebanon or pay for the wife and kids to stay in America or what?”  The next day Mr S says he received a telephone call from D Fouadi.  In that call D Fouadi said “[the father] said you are nothing to do with kids, [the father] wants to take the kids back to South Lebanon he is going to enrol them […] Private School at […].”

8. Mr S says that a few days after that conversation he received a call from his cousin Mr Z who lives in California.  Mr Z said to him “there is something wrong with [the father].  He needs a psychiatrist.  He does not listed [sic] to anyone.  He said he wants to live his life on his own.”  A few days later Mr S said he received another call from Mr Z who spoke about a meeting between the mother, the father and family members including a Sheik.  Part of that conversation included the following “the Sheik asked [the father] where are the kids going to be if there is a divorce.  [The father] replied with me.”

9. Mr S says that sometime about July 2009 the mother rang him and said “my husband’s gone back to Lebanon to live.”  Thereafter Mr S said “I received a phone call from [Mr R]  he said ‘I am sorry to give you this bad news but [the father] says he divorced your daughter one week with a sheik in California’”.  Mr S says that in August 2009 he received a phone call from the mother.  She said “[the father] does not want to pay the rent, or pay for the kids or the bills.  I rang [the father] and he told me to get you back to Australia.  What am I going to do.  The agent gave me notice for 3 September 2009.  I have nowhere to live.  No money.  The kids are scared.”

10. Mr S says that in reply to the mother’s phone call in August 2009 he said to her “I will pay for you and the kids to come here.  I will buy you a return ticket for when things get better and you can go back.”

11. Mr S claims that the father married Ms U in October 2009.  He said “the marriage certificate states clearly that [Ms U] is the ‘second wife’”.

12. The respondent tended in her case a document titled “Statement of Marriage”.  This document is expressed to be “extract translation from Arabic”.  It clearly fits a description of a marriage certificate.  It does not specify where the marriage took place.  It does specify the date of issue of the certificate.

13. In order to determine this issue it is necessary to consider general questions of the credibility of each of the mother and father and their witnesses.

14. In the mother’s affidavit, which formed part of her response, she gives a long and reasonably detailed account of violence perpetrated upon her by the father from the time she commenced to reside in America with him.

15. When the mother moved to California in 1992 she was 15 years of age and did not turn 16 until December 1992.  She arrived in America in February 1992.  At the age of 15 the mother says the father entered her bedroom at about midnight.  She says he forced himself upon her, he slapped her face, he raped her. 

16. Rape is a criminal offence in Australia and I have no reason to believe it would not have been a serious criminal offence in California in early 1992.  Further, sexual intercourse with a person under the age of 16 years is and was an offence under Australian law in early 1992.  I have no reason to believe it would not likewise have been an offence under Californian law at that time.

17. When the mother brought the children to Australia in September 2009 she did so using the children’s passports which were issued in the United States of America on the 1^st July 2005.  Those passports have been tendered in evidence in this court.  They show the children entered Australia on 1 September 2009. 

18. In the mother’s affidavit she attests to conversations between she and the father where he told her that he wanted she and the children to live in Lebanon.  The mother says that in 2008 the father said to her “you are going to stay with my parents for two years whilst the house is being finished.  The kids are going to stay there too.”  The mother says there was an argument about the father insisting that the children live in Lebanon.  During that argument he said to her “if the kids are there and they see the war happening then they are going to be strong men, its good for them.  When the kids are old enough they will join the Hezbollah like me and they will fight the Kafar (the enemy), the Israeli’s.  Hope to god they can be Shahadi (martyrs) against the enemies and die like real men.”  During that same conversation the mother said the father said to her “you are never going to get anywhere stopping me and the kids from going to Lebanon.”

1. The mother says that in February 2009 she took H to see a doctor.  She obtained a medical report which he annexed to her affidavit.  The doctor told her “your son has the bone age of an 8 year old male and that is not good.  He needs treatment, he needs hormone injections to gain height.”  Thereafter the mother took H to the children’s hospital.  Further tests were conducted.  She was told that her medical insurance does not cover the cost of treatment.  She was told that the cost would be US$1,000  for five injections.  He must have one injection each day and the treatment will take 18 months.

2. Following that advice the mother said she spoke to the father and advised him of the cost.  He said to her “go and check with another hospital or we can do it in Lebanon, its much cheaper.”

3. The mother said she made further enquiries and telephoned the father and said to him “there are no growth hormone injections in Lebanon”  she told him what she had ascertained from the doctor.  The father replied “you are lying.  If you care about [H] you will take him to Lebanon.”  The father said “I want to treat him in Lebanon.”  The mother would not agree to that proposal. 

4. In late February 2009 the mother said she asked the father to take her to the children’s hospital.  He said “I am not leaving the store to take you and [H] to the hospital.  I am not going to pay that kind of money just forget it.”

5. The mother says that in relation to the treatment for H she said to the father “if you let me go to Australia with the kids, I can get [H] treated by Medicare and its for free I am an Australian and they are my children”.  The father replied “no you can only do it in Lebanon.  No, no, no.”

6. The mother says that in March 2009 she discovered naked photos of the father and a girl on his mobile phone in his vehicle.  As a result of that incident there was conflict between the parties.  During one altercation the mother says “he flipped the table at the kids.  [M] starting yelling at him and [M] said “you are mean” I saw [the father] hit [M] with his thong and he was hitting him on his body, arms and legs.  [M] fell on the floor.  [M] was screaming.  I screamed at [the father] and I said ‘leave us alone and stop treating us like shit just because you are in love with someone else and you don’t want us in your life.  Don’t do these sorts of things’”.  The mother said the father then said to her “I want to live my life, I don’t want to live here with you and the kids.”

7. The mother says that sometime prior to March 2009 the father had been to Lebanon for two weeks to visit his father who was very sick.  The father had said to her on the day before he left “I want you and the kids out of the house before I come back.”  When he returned from Lebanon the father said to the mother “I have met a girl in Lebanon and I have fallen in love with her.”

8. The mother says that when the father left the home (sometime in early to mid 2009) she had no money to buy food or pay the rent.  The father had traditionally paid the rent which was US$1,391 per month.  The mother contacted the father by phone about her financial circumstances.  At that time the chid N was 15 and was working with the father.  When he returned home he said “dad gave me $100 and said that’s for two weeks for mum to cover all her bills and food”.  The mother rang the father and complained “this is not enough, what is wrong with you.”  The father replied “you don’t like it go back to your parents they will feed you.”  The mother said that thereafter her sister K gave her $200 per week to help with the costs and send food to the home.

9. It is clear that while she lived in America with the father she was dependant upon him for her financial support. There is no evidence the wife has ever worked whilst in the USA or that she is capable of securing any employment. She does not appear to have any formal training for any occupation.

10. In August 2009 the mother said that she was told by N that the father had gone to Lebanon.  The mother said she receive a telephone call from Sheik E who is a distant cousin in the family.  Sheik E said to her “[the father] came here and wants to file for divorce.”  The mother replied “OK I think he has someone else in his life.”  He said “[the father] wants you and the kids to be in Lebanon.  He does not want to divorce he just wants you and the kids in Lebanon and he also wants to marry another person.  You have to understand that under Islamic law that wife must listen to the man no matter what even if he wants to get married with another woman when he is already married and the old wife must accept that and do whatever he wants even if he wants you and the kids in Lebanon.”  The mother said she told Sheik E “tell [the father] to go to hell with his new wife.”

11. In August 2009 the mother said she received a call from the father’s brother D who lives in California.  He said to her “[the father] called me and he said you and the kids get out of the house, we are not paying rent no more.  OK.”  The mother protested and in particular said “he can’t kick his own kids out on the street.”  To which D replied “that’s ok because the kids are going to live in Lebanon and you can go back to Australia.”

12. The father signed an affidavit on 7 January 2010 which was filed on 11 January 2010.  He signed an addendum to the affidavit on 7 January 2010 which was filed on 11 January 2010 and he signed another addendum to the affidavit on 9 January 2010 which was filed on 11 January 2010.  In the first of his affidavits he says “I deny both generally and specifically each and every allegations on impropriety contained in the nine affidavits of the abductor mother and [named witnesses].”  He further said “these lies are made against me by a criminal mother who in violation of the Californian and United States law has stolen by two US born children ... The witnesses against me have also lied under oath and engaged in criminal acts in Australia.  Please investigate the witnesses against me.”

13. The father said that “after separation I was seeing all my children [N] and [H] and [M] on regular basis.  We would go shopping together, we would eat together, I would go to doctor to them, and to Mosque, they will visit my store, and I would take them to the toy store and buy toys for them, I was paying all their expenses and anything else they needed.”

14. In paragraph 22 of his affidavit the father claims the mother “illegally obtained passports for my two children.”

15. In paragraph 43 the father specifically deals with topics raised in the mother’s allegations.  He says “I never raped her, not on our wedding night and not ever.  She never ever said anything like that to me.”

16. Under the heading “my criminal history” the father said “I have never been convicted of anything. I was placed on a one year probation for a misdemeanour.”

17. Under the heading “marriage to another woman” the father said “I have not been legally married to another woman. My relationship with another woman and the document attached to their response is not recognised in California or in the US as a marriage.” This statement is very worrying in that it could indicate a level of subterfuge on the part of the husband. It also could indicate to committing of a criminal offence, namely bigamy. 

18. Under the heading “relocating my family or children to Lebanon” the father said “I have no intention of relocating my family or my children to Lebanon.  I have a business in Los Angeles, California US and my entire life is in the US.  My new relationship is with a lady who has a US residency.”

19. Under the heading “infidelity” the father says “it is [the mother] who is (sic) been involved with numerous other men and has engaged in infidelities.”

20. Under the heading “financial commitment” the father says “I have always taken care of my family both financially and otherwise and am willing to do so.  [The mother] can stay with her sister.  Her sister [K] is married to [A Fouadi] who is my brother.  [The mother] can also stay with numerous and extensive relatives she has including at least four uncles.” Such a statement does not immediately suggest that the father is prepared to financially support the mother if she returns to California with the children.

21. Under the heading “domestic violence” the father says “I do no [sic] wish to dignify the ugly statements [the mother] with a response.  I generally and specifically deny all allegations of domestic violence.  These statements are false and invalid.  I have never hit, struck or smashed [the mother] or any of my children.  I never engaged in any domestic violence against [the mother] or my children or any family members.  I never engaged emotional or verbal abuse against [the mother] or my children or any family members as alleged.”

22. Under the heading “relocating the children to Lebanon” the father says “I have no intention of relocating myself or the children to Lebanon.  I have gone through all these [sic] effort and expense to keep my children in the US and with their father.”

23. Under the heading “providing medical care” the father says “I have never neglected to provide the medical treatment for my children.  I will provide any kind of medical treatment that [H] may require.  In the US the medical care is prevalent and is not prohibitively expensive.  Whatever the cost I am willing to provide medical care for [H].  The US provides the best and most advanced medical care in the world.”

24. The father responds to allegations the mother made that he had isolated her.  He said “I never engaged in isolating or any action that prevented [the mother] from seeing her friends or family members as alleged.  She at all times had a vehicle … further contrary to the allegation of Mr [R] I never refused to get a cell phone contract.  She had numerous cell phones at all times which she used to speak to all kinds of individuals.  I never engaged threats or intimidation against [the mother] or my children or her family members as alleged.  She is the one who has threatened and unlawfully abducted my children.”

25. In the father’s affidavit he responds to specific paragraphs in the mother’s affidavit.  He denies that he engaged in the activities the mother alleges in paragraph 9 of her affidavit.  He does not deny the contents of paragraphs 7 and 8.  The father denies he engaged in the activities specified in paragraphs 10 and 11 of the mother’s affidavit.  He does not deny the contents of paragraphs 12, 13 and 14.  I note however in his general denial he denies that he ever engaged in any action with was isolating of the mother.  The father does not deny the contents of paragraph 16.  The father denies the contents of paragraphs 17 through to 19 and also paragraph 21.  The father does not deny the contents of paragraph 20.  I note however that he has made a general denial of domestic violence.  The father does not deny the contents of paragraphs 22 and 23 of the mother’s affidavit. I note however that he has made general denials that would cover the contents of paragraphs 22 and 23. 

26. The father denies the contents of paragraph 24 and provides an explanation and additional information.  He sets out what he says the situation was in relation to his contact with the police department in Los Angeles. 

27. The father denies the contents of paragraphs 25 and 26. 

28. The father does not deny the content of paragraphs 27, 28 and 29 of the mother’s affidavit.

29. The father denies the contents of paragraphs 30 to 32, 33 and 34.  The father does not deny the contents of paragraphs 35, 36 and 37.

30. The father denies the allegations in paragraph 38.  He asserts that he would provide any kind of medical treatment that H would require.

31. The father denies the contents of paragraphs 39.  He said “I have never neglected to provide the food and shelter for my children.  This is proven by the statement in paragraph 40 that I always paid the rent.  I ask [sic] my name be removed from the lease because she had threatened and did in fact substantially damage the apartment.  The bill from the landlord is attached.”  (I note there is no attachment to the father’s affidavits).

32. The father denies he engaged in the activities alleged by the mother in paragraphs 39 to 40, 41 to 42, 43 to 44 and paragraph 47. 

33. The father does not specifically deny the contents of paragraph 45.  I note however that the father describes the mother as “the abductor mother” and by implication would therefore deny that he gave his consent to her removing the children from the United States of America.

34. The father has relied upon an affidavit signed by the parties' 15 year old child N. Such an affidavit would not be permitted in the Family Court of Australia without first obtaining an order permitting evidence to be called from a child (see Rule 15.02 of the Family Law Rules 2004). Section 100B of the Family Law Act 1975 (Cth) provides “a child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings unless the court makes an order allowing the child to do so.” Section 100B(2) provides “a child must not be called as a witness in, or be present during, proceedings in the Family Court or in another court when exercising jurisdiction under this Act unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).” For the purposes of s 100B a child is defined as a person under 18 years of age. I would be surprised if there were not similar provisions in place in the State of California where N was required to sign the affidavit in the presence of the father’s attorney.

35. Given the circumstances which N finds himself in, I would not be prepared, in the absence of some other compelling evidence, to give any weight to the affidavit he has been required to sign.

36. There is nothing in the affidavit material signed by the respondent or filed on her behalf which suggests to me that it is inherently unbelievable.  There is documentary corroboration for a number of allegations made by the mother.  The father was clearly being untruthful when he alleged in his affidavit at paragraph 22 “she lied to us and deceived me, and illegally obtained passports for my two children.”  It is clearly uncontroversial between the parties that the mother and children travelled to Lebanon in 2005.  The father does not suggest that the children travelled on that occasion on passports other than those issued from the United States of America.

37. The document being the copy of the notice sent by the father to the property agent managing the residence in which the respondent and the children resided puts the lie to the assertion by the father that he had never failed to provide food and shelter for the children.  

38. At the trial of this matter before me the mother was present in court at all times.  The father was not present in court and it was the clear understanding of the court that the father was in the United States of America when the trial was conducted. 

39. At the commencement of the hearing I drew to the attention of the parties’ lawyers that the evidence of the father and the respondent was “awash with controversy”. Nearly every statement of fact asserted by the respondent was denied by the father.  I asked counsel for the applicant whether it was proposed that he would cross-examine the mother or any of her witnesses.  No such application to cross-examine any of the witnesses was pursued.  I also asked counsel for the mother whether she was proposing to cross-examine any of the witnesses of the applicant and I was told that was not possible due to their not being available in court.  I accept that had the mother sought to cross-examine the father or any other witnesses in the applicant’s case then arrangement could have been put in place for that to occur.  Nonetheless I do take into account that the mother and her witnesses were immediately available to be cross-examined by the applicant had it so chosen to do so. This is a circumstance which I can give some small amount of weight.

40. In the circumstances of this case I do accept the evidence of the mother and her witnesses in preference to that of the father. 

41. Having made a determination in respect of general matters of credit as between the father and the mother and the supporting witnesses, I now turned to consider the evidence contained in paragraph 45 of the mother’s affidavit.  I accept that the contents or paragraph 45 of the mother’s affidavit are true.

42. One of the criticisms of the mother’s case made by the applicant relates to the absence of any evidence in respect of the child N and why he did not accompany the mother whilst coming to Australia.  In relation to that fact the mother gave oral evidence.  She said that she had a conversation with N on about the 30^th or 31^st of August 2009.  She said the conversation took place at the home a couple of days “before I was kicked out of the house”.  She said that N elected to stay in America rather than travel to Australia with the mother and his brothers.  Before the mother left America, N had moved all his possessions to the father’s house.  She said that the father had brought him to the residence although the father waited for him outside the residence.  N collected his belongings and left with his father.

43. It was submitted on behalf of the mother that in light of the evidence she gave in respect of N it is a clear implication that the father must have known the mother was leaving America and taking the younger children with her to Australia. 

44. In submissions made by the applicant to convince the court that the evidence in paragraph 45 of the mother’s affidavit should not be accepted the applicant said that the father’s actions in seeking the return of the children from Australia quickly after their removal would put the lie to the claim by the mother that the father had instructed her to remove herself and the two children to Australia.

45. As stated earlier I accept that in about mid-August 2009 the father, in telephone conversation, conveyed to the mother the clear message that he desired her to return to her parents in Australia and take the children with her.  I accept that the clear meaning of the father’s statements was that such move should be a permanent one.

46. The question arises as to whether the circumstances in which the father made the statement to the mother, as above referred to, and the content of the statement was clear enough, to be regarded as consent for the purposes of satisfying the provisions of Regulation 16(3)(a)(ii) of the Regulations.

47. The authorities appear clear that in order for a respondent to establish consent or acquiescence by the other parent to the removal of the children from a Convention country “there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence on the part of the alleged consenter.”

48. So far as the giving of consent is concerned, the court needs to have regard to all of the circumstances surrounding that alleged consent in order to determine whether the consent was real and/or the respondent was entitled to consider the consent as real in all of the circumstances.

49. In this case it seems that the father’s energies had been channelled for some years into an end of having the mother and children reside in Lebanon in a house which he was building.  On the mother’s own evidence in 2009 the father was still indicating an intention to have the mother and children live in Lebanon (see the affidavit of Mr R).

50. In my opinion it would be dangerous to accept the words and circumstances as disclosed in paragraph 45 of the mother’s affidavit as providing genuine and proper consent by the father to the mother removing the children from America to Australia.  The circumstances surrounding the conversation are suggestive of the words being said by the father in anger rather than in a considered and serious manner.  The actions taken by the father in seeking the return of the children very quickly after he had established where they were supports a conclusion that real consent was not provided.

1. I therefore reject the mother’s case that the father had provided consent for her to remove the children from the United States of America.

2. Having determined that no consent was given by the father for the removal of the children from America, it then follows that I then find the children were wrongfully removed from California in the USA.

Is there a grave risk that a return of the children under the Convention would expose them to physical of psychological harm or otherwise place the children in an intolerable situation.

1. The submission on behalf of the respondent to identify the grave risk to the children as being:

   a)Exposed to domestic violence between their father and his new partner;

   b)Being assaulted by the father;

   c)Being removed from the United States of America and taken to Lebanon by their father;

   d)Not being properly financially cared for;

   e)Not having their medical needs promptly attended to or attended to at all.

2. In each of the submissions made by the respondent the evidence is referred to which supports that submission.

3. I have already found that the mother’s evidence should be accepted and I accept that she has provided evidence which would ground each and every one of the submissions made on this topic by the respondent.

4. I accept that the father was violent to the mother both physically and verbally during the course of their relationship.  I accept that the children were exposed to that violence.

5. I accept their mother’s evidence that the father was physically violent to the children including M and H in March 2009 when he flipped a table in the direction of the children and then hit M with a thong.

6. I accept the mother’s evidence that the father has been endeavouring to persuade she and the children to leave the United States of America and live in Lebanon in a village which is close to the border with Israel.  I accept the mother’s evidence that if she and the children lived in that village it would put them in harms way and probably expose them to war.

7. I accept the mother’s evidence that the father has failed to properly financially care for the mother and the children following the separation in May 2009.  I accept that there is a risk that he will fail to do so in the future. The mother and children were clearly dependent upon the father during the marriage. There is no evidence that the mother or the children would be eligible for any government support or if so what that support might be. There is no evidence to suggest that the mother has any capacity to earn income herself in America. The father seems to suggest that the mother’s relatives in America should bear the responsibility to support her.

8. The mother took no action with authorities during her time in America to shelter the children from the father’s violence and domineering behaviour. There must be a concern that she will feel powerless to do so in the future if she returns to the USA with the children.

9. I accept the mother’s evidence that the father had refused to pay for medical treatment required for H. 

10. I accept that if the children were returned to the United States of America they would immediately go into the care of their father as he now has an order in his favour from the American courts requiring that the children live with him.  Such an arrangement would be a substantial change in the circumstances of the children from that which is plainly evident on the affidavit material that the mother has been the primary caregiver for the children all their lives.

11. The father in his evidence says that he works seven days a week from 9.00 am to 7.00 pm.  This gives a picture of the degree of care the children must have received from their mother.  In addition the father has not specified what time, if any, he has spent with the children since separation in May 2009.  The evidence confirms that the father has been to Lebanon on at least one occasion during that period and probably two.  The father professes to have regular contact with the children but does not specify in fact what that means.

12. In determining whether any of the risks identified in these reasons is “a grave risk of exposure to future harm” I consider the following risks to fall into that category:

    1.That the father will take the children to Lebanon and leave them there permanently.

    2.That the children would be removed from the mother’s care.

    3.That the children’s medical needs will not be properly attended to or attended to at all.

    4.That the mother and the children will not be provided with adequate financial support.

13. I consider that there is clear and compelling evidence to enable me to reach the above mentioned conclusion.

THE DISCRETION

1. Notwithstanding that I am satisfied that there is a grave risk that an order for return would expose the children to physical or psychological harm or place them in an intolerable situation should they be returned, the regulation still contains a discretion to nonetheless require the return of the children. 

2. The respondent in her submissions refers me to the decision in D.P. v Central Authority; JLM v Director General Department of Community Services (2001) 206 CLR 401 at paragraph 40 where the following words appear:

   There may be many matters that bear upon the exercise of that discretion.  In particular there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk may otherwise have been established.  Ensuring that not only that there will be judicial proceedings in the country of return but also there will be suitable interim arrangements for the child may loom large at this point in the enquiry.

3. I therefore turn now to consider if the imposition of conditions for the return of the children to America would satisfy my concerns in relation to the risks determined by me to exist in the event of there being return without condition.  If I am so satisfied it then falls to me to determine whether I should make an order for the return of the children.

4. The respondent has provided to me a list of conditions which it is submitted should be imposed pursuant to Regulation 15(1)(c).  The conditions submitted for are as follows:

   RESPONDENT’S LIST OF CONDITIONS

   TO BE IMPOSED PURSUANT TO REGULATION 15(1)(C)

   On or before 21 February 2010:

   1.[Mr Fouadi] (“the father”), obtain from the Los Angeles Superior Court          the following orders to continue pending further order of that Court          to be made only after hearing [Ms Fouadi] (“the mother”):

   (a)That the father not remove [H] born […] September 1997 and [M] born […] December 2002 (“the children”) from the county of Los Angeles in the State of California;

   (b)That the Temporary Orders made on 24 September 2009 granting custody of the children to the father be vacated;

   (c)That the mother and the father have joint custody of the children;

   (d)That the children live with the mother;

   (e)That the father have reasonable supervised visitation, such visitation to be supervised by the children’s aunt, [K Fouadi] or other relative as agreed between the mother and the father.

   2.The father obtain from the Los Angeles Superior Court evidence that the Court has noted his undertakings:

   (a)Not to approach the children outside of the times agreed for supervised visitation;

   (b)Not to approach, harass, threaten or otherwise contact the mother except through family members for the purpose of organizing supervised visitation.

   3.The father withdraw all criminal and/or civil process charging the mother with kidnapping or child abduction and obtain from the LosAngeles Superior Court or other court of competent jurisdiction, evidence that all such process has been withdrawn or dismissed. 

   4.The father deposit into a bank account in the name of the mother the sum of USD$68,000.00

5. The Applicant provided me with a response to the conditions sought by the respondent. That response is as follows:

   The Applicant's general responses to the Respondent's proposed list of conditions are:

   A.     In relation to the restraint on the children being removed from California:

   a.The father requests that this order be mutual — as it was the mother who has already taken action to remove the children from that state.

   b.The father also requests that the mother agree to surrender all of the children's passports to the Los Angeles Superior Court forthwith upon her return to Los Angeles, pending further order of that court.

   c.There is no equivalent system to the PASS Alert in the United States — however the children's names can be placed on the State Department's Passport Lockup System — which places an alert on the child's name preventing a passport issuing for them. Since the children already have passports this does not seem necessary.

   B.     In relation to support for the mother and children:

   a.The father agrees to pay for [H’s] medical expenses directly to his doctor, upon receiving confirmation from the doctor that this treatment is necessary.

   b.The father agrees to pay for the mother's and children flights from Sydney to Los Angeles, if necessary.

   c.The father earns $3,000-$4,000 net per month. The father's personal expenses for himself and [N] are about $3,000 per month. The father has about $5,000-$7,000 in his bank account. The father agrees to pay $5,000 to the mother to meet her immediate costs upon returning to Los Angeles. If the mother sets up a bank account in her name, the father will deposit the money into this account. The father says that he cannot set up an account in her name (as the bank will not allow this) and that they used to use a joint bank account, but this has closed. The mother is entitled to apply immediately to the Los Angeles Superior court for further funds from the father and this is the appropriate forum to determine what further support is appropriate.

   d.The father spoke to the brother in law, "[Mr A Fouadi]" (husband of the mother's sister [K]) during the week of 11 January 2010. [A Fouadi] indicated that the mother and children can stay with her upon their return to the USA. [K and A] have two apartments, each with two bedrooms and two bathrooms. In the event that [K and A] can no longer host the mother and children, the mother and children might stay with one of her other relatives living in Los Angeles, including: […]. The father understands that ultimately the mother will have to move into her own accommodation. It is a matter for the Los Angeles Superior Court to determine what level of support is appropriate to facilitate this.

   e.The father will pay any school expenses for the children, directly to the school.

   C.     In relation to the kidnapping changes:

   a.The father as the principal complaining witness may request that the prosecutor not press changes of kidnapping but the decision whether to do so is within the sole discretion of the prosecutor.

   b.The father agrees to do all he can to have the kidnapping charges withdrawn.

   D.     In relation to the mother obtaining legal representation and relief in Los Angeles, the writer has been informed by the father's solicitor in Los Angeles that:

   a.The mother can obtain legal representation from a Legal Clinic such as The Legal Aid Foundation of Los Angeles […] or Norwalk Outreach […].

   b.The mother may also represent herself in the Los Angeles Superior Court, as this is a very common practice.

   c.The domestic Family Court matter is next before the Los Angeles Superior Court on 1 February 2010. On that date the mother could apply for further support from the father. The Los Angeles Superior Court may hear the mother's application that day or set the matter down for hearing a few days later. The mother should receive an interim determination within a few weeks.

   E.     The NSW Central Authority has also been informed that:

   a.In the writer's conversation with the mother's solicitor, Mr Dlakic, on 20 January 2010, Mr Dlakic indicated that he had been instructed that the mother was on a Green Card in the US with the reference number: INS Identification A: […], but the Green Card may have expired.

   b.If [the mother] has a form I 551 (Green Card) she does not need a visa to return to the USA unless she has been out of the USA for 365 or more days (which she has not). If she has a Green Card she is, a "Lawful Permanent Resident". Lawful Permanent Residents can, with prior authorization from the Customs and Immigration agency remain out of the US for up to two years. Without prior authorization, extended absences lasting a year or more are considered abandonment of residence and then a visa would be required.

   c.If [the mother] does not have a Green Card and the children are ordered to return to the USA [the mother] can obtain a VISA to enter and remain in the USA or have her Green Card renewed by attending on the US Embassy in Sydney and applying for a visa in the ordinary way. From the writer's personal experience in similar Hague matters involving the United States, this process takes about 2-5 working days from the time that the mother attends on the Embassy with her supporting documents until the visa is issued.

   CENTRAL AUTHORITY'S PROPOSED LIST OF CONDITIONS

   In these circumstances the Central Authority proposes the following list of conditions:

   1.     By no later than (say 28 days after the orders are made) the father apply for interim orders from Los Angeles Superior Court to the following effect:

   a.Both the mother and the father be restrained from removing the children:

   i.[H] born […] September 1997; and

   ii.[M] born […] December 2002 (collectively "the children")

   from the State of California.

   b.Forthwith upon returning to the United States, the mother shall surrender the children's passports to the Los Angeles Superior Court, pending further order of that court.

   c.That the temporary orders which provided that the father have sole custody of the children made 24 September 2009 be vacated and in their place orders be made that:

   i.The father and mother have joint custody of the children;

   ii.The children live with the mother;

   iii.The father spend time with the children each weekend;

   iv.That the father be restrained from approaching, threatening or harrassing the mother or members of her family;

   v.That the mother be restrained from approaching (at his home or business), threatening or harrassing the father or members of his family or his employees or customers attending at his business;

   vi.The father be restrained from contacting the mother. If the father seeks to contact the mother regarding the children, the father shall do so by speaking to the mother's sister [K] or the mother's brother in law [A Fouadi].

   2.     By no later than (say 28 days after the orders are made), the father will:

   a.do all things in his power and sign all documents necessary to have all civil and/or criminal proceedings against the mother in relation to any kidnapping changes withdrawn.

   b.provide the Los Angeles Superior Court with details of what steps he has taken to have these charges withdrawn and will request that the Los Angeles Superior Court confirms by way of a notation to an order that this means that the father has done all things in his power to have the all civil and/or criminal proceedings against the mother in relation to any kidnapping changes withdrawn.

   c.provide a copy of the orders and notation of the Los Angeles Superior Court to the applicant and the applicant will provide a copy to the Family Court of Australia.

   3.     The father will provide the following support to the mother and children to facilitate the children's return to Los Angeles California:

   a.In the event that the mother and children's return flights from Sydney to Los Angeles are no longer valid, the father will by no later than (say 28 days after the orders are made) pay for the mother and children's flights from Sydney to Los Angeles.

   b.By no later than (say 28 days after the orders are made) the father will pay into a bank account in the mother's name, the amount of $5,000 to assist the mother with her and the children's living expenses until she can make an application for any further financial relief to the Los Angles Superior Court.

   c.The father agrees to pay for [H’s] medical expenses and to facilitate this:

   i.The mother shall provide all authorities necessary to allow the father to speak with [H’s] treating medical practitioners about [H]; and

   ii.The mother shall direct [H’s] doctors to forward all invoices for [H’s] treatment directly to the father and the father shall pay for [H’s] medical treatment directly to the doctor.

6. It is implicit in the conditions sought by the respondent that she is permitted to enter the USA and remain there until such time as the litigation between she and the father is concluded so far as it relates to the children. In the submission made by the applicant that assumption is called into question. However, there is no evidence from the respondent to suggest that she could not return to live in the USA as she had been doing for many years. I consider it absolutely necessary for the well being of the children that the mother be able to live in the USA  for as long as is necessary to conclude the court proceedings relating to the children. In the event that she could not do so then I would not require the return of the children to the USA. I consider that the children would be in grave risk of physical and psychological harm if they were returned to the USA without their mother and I do not consider any condition imposed by the court could save them from that harm.

7. Having considered the submissions made in relation to “conditions” I conclude that the children should be returned to the USA upon the following conditions being fulfilled.

8. There needs to be a time limit on the compliance for the conditions. A time will arrive when the children are well settled in Australia if they are not returned to the USA. To return them after that time would be to fail to comply with the intention of the Convention. I consider the time to comply should be no more than six weeks from the date hereof. I consider that the father and the applicant may need more than 28 days to comply with the conditions set as part of the orders. The applicant strongly submitted that the return should be achieved within a period of no more than 6 weeks and that all of the conditions complied with by the expiration of 6 weeks from the date of order.

9. The respondent in her request for conditions to be imposed seeks the sum of USD$68,000 be provided by the father to a bank account in her name. This is a pre-condition to the requirement for the children to return to the USA. The applicant says that the father only has the capacity to provide $5,000 to $7,000 from savings and otherwise $1,000 per month towards the support of the mother and the children. It is suggested by the father that the mother house herself with relatives. None of the suggested alternatives as to accommodation for the mother in the USA can be regarded as evidence to which substantial weight might be given.

10. It seems to me that the father is clearly going to struggle to support the mother and the children in her care if all he can provide is the sum of about $1,000 per month. It is hard to see how he could be successful in a residence case for the children in those circumstances.

11. There is no clear evidence before me which indicates how long it would take for the courts in California to be able to hear the case on an interim level. I think it reasonable to allow for 3 months.

1. The mother’s financial needs (in US$), on the evidence before me appear to include the following:

   (a)The payment of airfares for she and the children to the USA;

   (b)Rental of about $1400 per month for at least 3 months: $4,200.

   (c)A rental bond of one months rent: $1,400.

   (d)Sufficient money to pay for food, fuel, electricity, telephone, healthcare and other essentials for three months. I would expect $1,000 per week to be a minimum. This would need to cover a period up to three months. That would be $12,000.

   (e)Sufficient to cover either the rental of a car or taxi and public transport fares for three months. I would allow $1,200.

   (f)Clothing, entertainment and emergencies: $2,200.

   TOTAL REQUIREMENT $20,000.

2. There are many things which may occur following the making of the orders in this matter and which may potentially frustrate the order for return or alternatively require that the order be discharged. Each party should have leave to re-list the matter before me or another Judge should I not be available for the purpose of seeking further orders.

3. The applicant seeks a condition different in terms to that proposed by the mother to deal with the circumstances of the mother being met with criminal charges arising out of the alleged abduction of the children from the USA. The applicant’s proposal envisages that the father may not be able to obtain the withdrawal of the charges. I would not be prepared to order the return of the children to the USA if there still remained charges which the mother could expect to be met with upon her return arising from the removal of the children from the USA. In my view the possibility of the incarceration of the mother and the children being deprived of their mother’s care and exposed to the care of their father would place the children at grave risk of being physically and psychologically harmed.

4. To show the strength of my concern for the children I say that if a court, either in this country or in the USA, ultimately establishes that many of the mother’s allegations against the father are true then I have real doubts as to the possibility of the father having anything other than strictly supervised time with his children.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  22 January 2010