TAHIR-AHMADI & KHALIL
[2009] FamCAFC 194
•30 October 2009
FAMILY COURT OF AUSTRALIA
| TAHIR-AHMADI & KHALIL | [2009] FamCAFC 194 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILDREN – where the Federal Magistrate made orders for the child to live with the father – where the father has no entitlement to remain living in Australia – where the effect of the orders was that the child would return with the father to Iran – where the Federal Magistrate made findings that if the child lived with the father he would have no relationship with the mother – where the Federal Magistrate made findings about the father’s ability to visit the child in Australia – whether certain findings were open to the Federal Magistrate – whether the Federal Magistrate failed to give any or any sufficient weight to the fact that the child will have no relationship with the mother if he lives with the father – where the orders are inconsistent with the Federal Magistrate’s reasons – where the Federal Magistrate fell into error by failing to adequately consider the benefit of the child having a meaningful relationship with both parents – appeal allowed. FAMILY LAW - APPEAL – where the Full Court is not in a position on the evidence to re-exercise the Court’s discretion – where the parties may wish to lead further evidence – matter remitted for rehearing. FAMILY LAW - COSTS – costs certificates granted to all parties in respect of the appeal and the rehearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) ss 60B & 60CC Federal Proceedings (Costs) Act 1981 (Cth) ss 6 & 9 |
| SS Hontestroom v SS Sagaporack [1927] AC 37 Allesch v Maunz (2000) 203 CLR 172 |
| APPELLANT: | Ms TAHIR-AHMADI |
| RESPONDENT: | Mr KHALIL |
| INDEPENDENT CHILDREN’S LAWYER: | Stuart BARR |
| FILE NUMBER: | ADM | 4094 | of | 2006 |
| APPEAL NUMBER: | SA | 92 | of | 2008 |
| DATE DELIVERED: | 30 October 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Finn, Coleman & Strickland JJ |
| HEARING DATE: | 6 May 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 November 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1193 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Childs |
| SOLICITOR FOR THE APPELLANT: | McDonald Steed McGrath Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mellows |
| SOLICITOR FOR THE RESPONDENT: | Legal Services Commission of South Australia |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Pickhaver |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barr Lawyers |
ORDERS
That the appeal against the orders made by Federal Magistrate Lindsay on 5 November 2008 be allowed and those orders be set aside.
That the matter be remitted to the Federal Magistrates Court for hearing by a Federal Magistrate other than Federal Magistrate Lindsay.
That the matter be listed before a Federal Magistrate in the Adelaide Registry as soon as possible to determine any application for interim parenting orders and the procedural directions necessary for a rehearing of the parenting applications.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by him in relation to the appeal.
That the Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing referred to in paragraph (2) of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Tahir – Ahmadi & Khalil is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 92 of 2008
File Number: ADM 4094 of 2006
| Ms TAHIR -AHMADI |
Appellant
And
| Mr KHALIL |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 14 November 2008 the mother appeals against parenting orders made by Federal Magistrate Lindsay on 5 November 2008 with respect to the child A born in February 1999.
His Honour’s orders provided that the child live with the father, and that the father have sole parental responsibility for the child. Given that the father has no entitlement to remain living in Australia, the effect of his Honour’s orders was that the child would return with the father to live in Iran, where both parties and the child were born and lived until coming to Australia in 2003. His Honour also ordered that the father facilitate the child spending time with the mother in Australia on two occasions each year.
The mother seeks that in the event that the appeal is successful this Court re-exercise the discretion and order that the child live with her, that she have sole parental responsibility for the child and that the child spend time with the father in Australia during school holiday periods.
Both the father and the Independent Children’s Lawyer seek that the appeal be dismissed.
Background
The relevant background emerges from the Federal Magistrate’s reasons and although not controversial it needs to be set out in some detail here.
The father was born in Iran in September 1965 and was aged 42 years at the time of trial.
The mother was born in Iran in January 1969 and was aged 39 years at the time of trial.
The mother undertook studies in Iran and was registered in her profession in 1996. Following further study, she became qualified in a specialisation in 2003. The father has qualifications as a professional.
The parties married in Iran in February 1998.
The parties’ child A was born in Iran in February 1999 and was aged 9 years at the time of trial.
In 2002 the parties separated for approximately six months whilst living in Iran.
In May 2003 the father came to Australia on a student visa after obtaining a scholarship from the Iranian government to study in Australia. The father was required to provide guarantees and security to the Iranian government to ensure his return to Iran at the completion of his studies in Australia. The father says if he does not return to Iran he will forfeit his property and money in Iran and family members who acted as guarantors for him will also be held financially responsible for his failure to return.
The mother and child joined the father in Australia on dependant visas in September 2003.
In July 2006 the parties and the child returned to Iran for approximately a month for a holiday.
The parties separated in October 2006 when the mother left the former matrimonial home with the child. Following separation the father did not have any contact with the child for 5 months.
On 20 October 2006 the mother applied to the Department of Immigration and Citizenship for a Protection Visa for herself and the child.
On 27 October 2006 the mother obtained a domestic violence restraining order against the father in the Port Adelaide Magistrates Court.
On 4 December 2006 the father commenced proceedings in the Federal Magistrates Court seeking final and interim orders with respect to the child, including a recovery order for the return of the child to the father.
On 13 December 2006 Federal Magistrate Lindsay made an order pursuant to s 67N of the Family Law Act 1975 (Cth) seeking that information be provided by Centrelink with respect to the whereabouts of the mother and child.
On 23 January 2007 Federal Magistrate Lindsay ordered that the Secretary of the Department of Immigration and Multicultural Affairs provide to the Court information as to the location of the child pursuant to s 67N(2) of the Act.
On 20 February 2007 orders were made placing the child on the Airport Watch List and injunctions were granted restraining both parties from removing the child from Australia. A further location order was also issued to Centrelink.
On 23 February 2007 the mother and child were granted permanent protection visas, entitling them to permanent residence in Australia. In granting this visa, the delegate of the Minister for Immigration and Multicultural Affairs was satisfied that the mother was a person to whom Australia owed protection obligations pursuant to the United Nations Convention relating to the Status of Refugees 1961 and Protocol relating to the Status of Refugees 1967.
The mother and the child were subsequently located and the mother was served with the proceedings.
On 5 March 2007 Federal Magistrate Lindsay made interim orders that the child live with the mother and that the mother facilitate the child spending supervised time with the father.
On 14 March 2007 Federal Magistrate Lindsay made further interim orders that the child live with the father from 6:00pm on Friday to 6:00pm on Sunday each alternate weekend and from 6:00pm Friday to 6:00pm on Saturday in the intervening weekend, with the child to live with the mother at all other times.
On 8 May 2007 Federal Magistrate Lindsay made orders that pending the trial the child live with the mother, save and except that he was to live with the father from 5:00pm Friday to 5:00pm Sunday on alternate weekends and from 3:30pm Tuesday to 8:30am Wednesday.
On 21 August 2007 the father obtained an ex parte order from an Iranian court granting him custody of the child. The mother was never served with these proceedings.
On 1 February 2008 Federal Magistrate Lindsay made orders by consent that the mother be restrained from undertaking any action which may result in the child losing his Iranian citizenship or acquiring citizenship of Australia or any other country. Orders were also made by consent varying the time the father was to spend with the child, such that the father was to spend time with the child from 5:00pm Friday to 8:15am Monday each alternate weekend and from 5:00pm each Tuesday to 8:15am on Wednesday.
The trial was heard by Federal Magistrate Lindsay on 10 and 11 September 2007, 29 and 30 January and 18 June 2008, when his Honour reserved judgment. Counsel subsequently filed written closing submissions.
His Honour delivered his reasons for judgment on 5 November 2008 and made the following final orders:
1.All previous parenting orders be and the same are hereby discharged.
2.All orders of injunction restraining the father from removing the child [A] born […] February 1999 from the Commonwealth of Australia be and the same are hereby discharged.
3.The said child do live with the father.
4.The father have sole parental responsibility of the said child.
5.The father do all such things as may be reasonably required to facilitate the child spending the following time with the mother on two occasions per year for periods for not less than twenty-one (21) days and not less than twenty-eight (28) days namely in January/February and August/September such time-spent to occur in Australia.
6.For the purposes of effecting the time-spent referred to in (5) herein:
a.The father do all such things as may be reasonably required to send the said child by commercial aircraft from Iran to Australia and in particular do all such things as may be required to ensure that the child is accompanied by an adult relation;
b.The father meet all costs associated with the return travel of the child and the adult relation.
7.The appointment of the Independent Children’s Lawyer be discharged.
8.All extant applications be otherwise dismissed.
On 14 November 2008 the mother filed a Notice of Appeal against Federal Magistrate Lindsay’s orders. The mother also filed an Application in a Case on this date seeking that the orders of 5 November 2008 be stayed pending the outcome of this appeal.
The mother’s Application for a stay was heard by Federal Magistrate Lindsay on 14 November 2008, when the application was adjourned for further consideration. During the period of the adjournment the orders of 5 November 2008 were stayed. His Honour also made orders that the mother deliver the child up to the father and that during the period of the adjournment the child live with the father and spend specified time with the mother. Orders were made again restraining both parties from removing the child from Australia and placing the child back on the Airport Watch List.
On 24 November 2008 the father filed a Response to the mother’s Application seeking that he be at liberty to reside in Iran with the child pending the appeal, and in the alternative that the child live with him in Australia pending the appeal.
On 27 November 2008 Federal Magistrate Lindsay continued the orders made on 14 November restraining the parties from removing the child from Australia and placing the child on the Airport Watch List pending determination of the appeal. His Honour also made orders that until further order the child live with the father and for the father to facilitate the child spending time with the mother two out of three weekends from the conclusion of school Friday until the commencement of school Monday and alternate weeks during the Christmas school holidays.
Reasons for Judgment of the Federal Magistrate
Given that the focus of the appeal was on the issue of the relationship between the child and each of the parents, and the inconsistency of the conclusion of the Federal Magistrate with his findings, we do not propose to summarise all of the reasons of the Federal Magistrate. There was also a degree of repetition in those reasons, but that no doubt arose from the complexity of the provisions of Part VII of the Act.
His Honour identified that “the essential task of the Court in these proceedings is to determine with whom [A] shall live, knowing that he will have very limited opportunity to interact in the future with the parent with whom he does not live”.
The Federal Magistrate recorded that the case had proceeded on the basis that the mother will reside in Australia and the father in Iran. His Honour noted that there was an issue with respect to the possibility of the parent with whom the child does not reside spending time with the child in the country other than which they live, concluding that “the practicalities of the matter are that these proceedings will have an outcome whereby [A] will be raised almost exclusively by one parent and will have very little opportunity of a relationship with the other parent.”
The Federal Magistrate then had regard to the report prepared by Mr M, family consultant, who interviewed the child at the homes of each of his parents, interviewed the parties and observed each of them with the child. His Honour recorded that Mr M “had no doubt but that the child had a close and affectionate relationship with each of his parents.”
The Federal Magistrate then outlined the proposals of the parties. The mother proposed that the child live with her and spend time with the father. His Honour noted that the mother’s proposal for the child to spend time with his father in Australia reflected her “practical inability” to return to Iran while she was not an Australian citizen and that she did not have the financial capacity to pay or contribute to the costs of the child spending time with the father in Iran. His Honour outlined that the father proposed that the child live with him and visit the mother twice per year, and that the father was prepared to meet part of the costs of this travel and to accompany the child and a member of the mother’s family as far as Kuala Lumpur.
Having outlined the proposals of the parties, the Federal Magistrate recorded the submissions of the father. The father maintained before his Honour that the parties came to Australia “strictly upon the understanding” they would be required to return to Iran when he had completed his studies. His Honour recorded that the father’s family would forfeit $250,000 if he did not return. The father was due to return in 2006.
It was not disputed before the Federal Magistrate that the father had no notice of the mother’s intention to leave the former matrimonial home and that after she left he had no contact or communication with his son for five months.
The Federal Magistrate highlighted that the father was not given any opportunity to participate in the process of the mother and child obtaining permanent residency through protection visas. The father had claimed it was part of the mother’s “plan” to remain in Australia.
His Honour noted it was the father’s contention that he had a greater role in caring for the child in Iran due to the mother’s studies. The father claimed the mother was “oppositional” to him spending time with the child since separation. The father also asserted that he promoted the child’s participation in Iranian social and cultural activities and that only by granting his application would the child be able to relate to his extended family.
His Honour noted that the father commenced proceedings in Iran seeking what his Honour described as a default judgment on 21 August 2007. No effort was made by the father to serve this on the mother or her legal representatives.
His Honour noted that the father denied the allegations that he was violent to the mother, and that any difficulties between the parties related to the mother suffering from a condition known as Graves Disease.
Having thus generally outlined the submissions of the father, the Federal Magistrate then made further reference to the report of the family consultant, noting Mr M’s concern that A’s preference to live with his father was effected by things such as the father’s ability and apparent propensity to buy more expensive toys.
The Federal Magistrate also referred to Mr M’s assessment regarding the child’s relationship with his parents and with his extended family. The Federal Magistrate noted that Mr M considered A to be an “adaptable and resourceful child” which was important in the context of his being able to cope, for example, with being unable to return to “the kind of life” that he had with his family in Iran and with the absence of extended family members. The Federal Magistrate also recorded Mr M’s observation that the child had no clear understanding of what would be involved in living a life that was “almost completely absent any form of contact with the other parent”.
Finally, his Honour noted Mr M’s comment that while the child had spent the majority of his childhood in Australia, for the “most substantial period of that time” the family including the child had the clear expectation of returning to Iran at the end of 2006.
His Honour again recorded the father’s denials of the mother’s domestic violence allegations. It had been submitted by the father’s counsel that if the mother was afraid of the father, she would not have returned to Iran for a holiday or returned to Australia after the holiday with the father.
The Federal Magistrate concluded that this was not a case which could be categorised as a “relocation case”, stating:
“I am not sure that even if it fulfilled the criteria for inclusion in that category of case, that it would have made any significant difference to the way in which the Court would have determined the matter. It is not a case of a parent wanting to take a child away from a settled environment and the Court having to evaluate the competing applications of the parties on that basis. This is a family who had always intended that their sojourn in Australia would be for a limited period of time. They were, until their separation, Iranian nationals temporarily resident in Australia whilst the father completed a PhD course … The mother does not wish to “relocate” in the sense of taking the child from one locality in which this Court has a jurisdiction to another locality in which it has a jurisdiction. She wants the Court to make an order that thwarts the previous position that this family had adopted of returning to live in Iran.”
His Honour noted that the father also did not seek orders of the kind “normally agitated” in relocation cases:
“If the Court grants the orders the father wishes then the child will effectively be out of the jurisdiction of this Court. I can make orders regulating the time the mother spends with the child in Iran or in Australia but realistically there is little capacity for enforcement of such orders.” (Emphasis added)
In the Federal Magistrate’s view the case was a “black and white” contest between “a parent who wishes to bring up a child in Australia and a parent who wishes to bring the child up in Iran”, noting that both applications were:
“…proceeding plainly upon the basis that the non-residential parent will have little to do in the raising of the child and little opportunity for interaction or communication with him. No option arises as to both parents remaining in the one country, let alone locality.”
His Honour thus concluded that the relocation cases to which he had been referred by counsel for the father were of no assistance to the determination of the matter, and that the matter was to be determined in accordance with a “conscientious weighing” of the s 60CC criteria.
His Honour identified that the evidence had raised “complications” about the mother’s relationship with the child, which his Honour found were absent from the child’s relationship with his father. In particular, reference was made to the problems the mother had had disciplining the child. The mother thought these problems arose due to her limited care for the child when he was young, which she attributed to the father’s alleged exclusion of her. His Honour recorded that at the time of trial the mother reported that her relationship with the child had improved “dramatically”, after seeking assistance from a counsellor.
The Federal Magistrate identified that it was an essential part of the father’s case that the mother had shown a serious disregard for the importance of the relationship between father and child, evidenced by her failure to facilitate any communication or contact between the child and the father for five months following separation and the alleged “generally oppositional attitude” of the mother to extensions of the father’s time with the child.
The Federal Magistrate then turned to consider the father’s ability to travel to Australia. The Federal Magistrate outlined the father’s evidence that it was more difficult for him to travel to Australia as a tourist to spend time with his son than it would be for him to return to Australia with the child to facilitate time spent with the mother. The father contended before his Honour that there would be “peculiar difficulties” associated with him obtaining the appropriate tourist visa if the child remained living in Australia with the mother due to the nature of the mother’s case with the Immigration Department regarding allegations of his domestic violence towards her.
His Honour found that the father’s contention was not supported by the evidence of the Immigration Agent, and concluded:
“I think I can infer the likelihood of the father being able to be granted a visa by Australian Immigration authorities for the purposes of visiting his son on an annual basis if the son were to remain here.”
His Honour found there was more force in the father’s submission that he had a more realistic opportunity of facilitating the mother spending time with the child if the child lived with him due to his better financial position and the complexities of the mother returning to Iran. His Honour acknowledged the mother also has “considerable obligations” to the Iranian government due to her studies.
The Federal Magistrate also had regard to the ability of the mother to travel to Iran, noting that if the mother was to return to Iran, even as an Australian citizen, the existence of the ex parte Iranian order in favour of the father would “render it highly likely that she would not leave the country with the child.” His Honour concluded that all of these factors made it unlikely that the mother would be travelling with the child to Iran to facilitate the father spending time with the child, and that it was “even more unlikely that she would send the child there unaccompanied due to the Iranian order.” His Honour also noted that the mother’s poor financial position militated against her sharing any of the expense associated with this travel.
The Federal Magistrate commented further that the father’s concern that the mother will not promote a relationship between the child and the father was “somewhat lessened” due to the “practical realities of the case”, stating:
“Even were her attitude to be wholly different than it is, it would not have a practical effect that would be markedly different from the situation that would maintain if the child were to live with her. If the child lives with her in Australia, he will not have an opportunity to interact with his father on anything resembling a regular basis in any event. It remains relevant, of course, in the context of communication whether by telephone or internet or webcam to take into account the mother’s oppositional attitude towards the father/son relationship.”
The Federal Magistrate identified that the principal area of conflict between the evidence of the parties was the issue of domestic violence and that allegations of domestic violence were “front and centre” to the mother’s case. The mother alleged abuse had occurred both in Iran and Australia and that the child was also physically abused.
His Honour recorded the nature of the domestic violence allegations made by the mother, and outlined the evidence with respect to these allegations, in particular with respect to an incident of domestic violence alleged to have occurred in Australia in June 2005. On this occasion it was alleged that the father had hit the mother on the nose.
His Honour then discussed issues relating to the receipt of certain evidence on which the mother relied in support of her allegations of domestic violence and the use to which that evidence could be put.
After considering all of the evidence, the Federal Magistrate was satisfied that the mother had been subjected to “violent conduct on occasion by the father.” However, his Honour was not able to make a finding as to the specific level of violence involved. His Honour did not accept the evidence of the father that there was no violence but also did not accept the mother’s evidence as to the level of or frequency of the violence. His Honour did not accept that the father was physically abusive of the child.
After considering the mother’s evidence on the issue of whether the child had changed his mind about where he wanted to live, his Honour also concluded that he was “very far from being persuaded that the mother was giving us a truthful account of these matters.”
The Federal Magistrate thought there was a high degree of evasiveness in the mother’s answers on this topic.
His Honour was also critical of the mother’s evidence in cross-examination on other issues, commenting at paragraph 106 with respect to the mother’s evidence that the father prevented her from having a proper relationship with her family in Iran:
“The mother’s attempt to suggest that the father ‘knew everything’ and was able to exercise control over her in this way was, or [sic] course, unconvincing. I was left with a strong impression that the mother had exaggerated her evidence in relation to the father quarantining her from appropriate contact with her family in Iran.”
His Honour also found that there were inconsistencies between the mother’s “attempt to portray herself as the person principally charged with the care of [A] in Iran and her inability to make a proper connection with [A] in his early years.” His Honour concluded that in the end it was not clear what the mother’s contentions were on the topic of her ability to bond with the child and whether any inability related to the father’s behaviour or her own study commitments.
With respect to the nature of the mother’s relationship with her family in Iran, his Honour found that it was plain from the evidence that there is “every reason” for tension between the mother and her family due to the fact that a relative of the mother would be liable to lose their home due to the mother’s inability to work for the government to repay the costs of her studies.
The Federal Magistrate also found that there were “fundamental inconsistencies” with respect to the mother’s evidence in relation to an incident of domestic violence alleged to have occurred whilst the parties were in Iran.
The Federal Magistrate recorded that at the end of the trial there was no agreed position upon the state of Iranian law, noting the inconsistencies with respect to the mother’s understanding of Iranian law, and that he was left with the impression that the mother was prepared to say in her affidavit sworn in March 2007 “whatever she thought would promote her position whether it was true or not.”
Having outlined a number of areas in which his Honour considered the evidence of the mother was inconsistent, his Honour concluded that while some of the criticisms may seem minor, it was the “aggregate effect of them that served to undermine her creditworthiness.”
The Federal Magistrate then turned to consider the primary considerations in s 60CC(2). His Honour found that as the parents will be living on opposite sides of the world and one of them will have the child “[t]here will be very little opportunity for the other to have a meaningful relationship with the child.”
His Honour acknowledged the importance of ensuring the child was protected from any form of abuse, repeating his finding that there had been “some degree of domestic violence perpetrated by the father on the mother”, but that he was of the view that the mother had exaggerated the extent of it and he was not convinced that the father had behaved in a physically abusive way towards the child.
Addressing the additional considerations in s 60CC(3), his Honour again recorded that the child had expressed a clear preference to live with his father, and the impression gained by his Honour after all of the evidence was that the relationship between the father and the child was stronger than the relationship between the mother and the child. His Honour at the end of the evidence had the “clear impression” that there were “some problems associated with the relationship between the child and the mother.” His Honour then said:
“I think that if the child was left with the mother and came to understand how long apart will be the times that he will be able to spend time with his father that it may give rise to resentment on the part of the child which will undermine the relationship with the mother even further. It is in that limited context that I think the wishes of the child have some bearing upon the determination of the matter.”
The child’s relationship with his extended family was then considered by the Federal Magistrate. His Honour concluded that despite possible resentment on the part of the father due to “difficulties” the mother had caused him, including not permitting him to have contact with the child following separation, he did not believe that this would result in the father “quarantining” the child from contact with his maternal family in Iran.
His Honour recorded that he had “significant doubts” concerning the willingness and ability of each of the parties to facilitate a “proper relationship” between the child and the other parent, again highlighting the mother’s actions in keeping the child from having contact with the father immediately after separation. His Honour then said:
“124.…I am sceptical of the father’s commitment of [sic] sustaining a relationship between the child and the mother if the child were to live with him in Iran. I inferred from the evidence a capacity for disrespectful behaviour by the father towards the mother and, fuelled with the resentment I have referred to above, it would be unsurprising, if disappointing, that he would not ensure that lines of communication between the child and the mother remained open. I have similar reservations in the event that the child lived with the mother in Australia though her lack of support for the relationship between father and child would arise from more defensive motivations.
125. The likely effect of the separation of the child from one of his parents will be highly detrimental and significant but there is nothing I can do about that.”
As will become apparent, his Honour’s comments at paragraph 126 of his reasons are of particular significance in this appeal. His Honour said:
“There are competing considerations with respect to s.60CC(3)(e). I find that it will be almost impossible for the mother to facilitate the child spending time with the father in Iran if the child remains living with her. This is so because of the existence of the Iranian Court order, her indebtedness to the Iranian government and her understandable caution about returning in the light of her having successfully attained refugee status here relating to fear of persecution in that country. On the other hand, the father will, I find, have the financial resources and opportunity to visit the child in Australia on two occasions per year. This is a significant consideration. Visiting on two occasions per year will not constitute a meaningful relationship, of course, but it will at least mean the child will have ongoing contact of one kind or another with each of his parents. However, I am sceptical about the father’s willingness to facilitate time-spent with the mother if the child lives with him in any event. I can make an order to that effect, but it will, especially in the light of the Iranian Court order, have little practical impact. I think I can proceed upon the basis that if the child lives with the father, he will have no relationship at all with his mother whereas if the child lives with the mother he will have a very limited relationship with his father.” (Emphasis added)
His Honour again outlined his criticism of the mother in keeping the child from having any contact with the father for five months following separation, and the father’s conduct in obtaining an Iranian order ex parte without serving the mother.
His Honour declined to determine whether the child would benefit more from being raised in Australia or Iran, noting merely that the child had spent a significant part of his life in Australia and is now a permanent resident.
The Federal Magistrate reiterated that the issue of family violence remained a significant concern, and that apart from the child’s physical safety, there was also the issue of the father’s appropriateness as a role model if the mother’s allegations were true or substantially true. His Honour considered that the impact of this consideration was lessened, however, by his “inability” to accept the truthfulness of the mother’s account of the extent of the violence.
Before outlining his final conclusion with respect to with whom the child should live, the Federal Magistrate expressed his concern alluded to earlier in his reasons with respect to the process by which the mother’s claim for a protection visa was assessed by the Department of Immigration.
The Federal Magistrate finally outlined his conclusion that the child should live with his father in Iran, stating in support of this finding:
“The evidence persuaded me that his relationship with his father is a firmer one; I am concerned about his not having the opportunity to relate [sic] extended paternal and maternal family members if he remains with his mother. I am concerned about the risk for further deterioration of the relationship between the mother and the child should the child remain with her and the child come to the realisation as to how limited his relationship with his father will be in the future. But it has been a finely balanced exercise.”
His Honour concluded that the father was to have sole parental responsibility as there was “no utility” in ordering equal shared parental responsibility.
Appeal
The mother’s Notice of Appeal filed on 14 November 2008 contains 17 grounds of appeal.
The mother does not pursue Ground 17.
Grounds 1 and 2 are simply assertions that the Federal Magistrate erred without specifying the nature of the error. The mother submits that the specificity is in grounds 2-16 in relation to ground 1 and is in grounds 3-10 and 12-16 in relation to ground 2.
However, the hearing of the appeal centred around issues which arose from ground 6, namely that the Federal Magistrate failed to give any sufficient weight to the fact that if the child lives with the father, he will have no relationship with the mother, and to a much lesser extent grounds 3, 5, 12 and 16. Ground 3 is that the Federal Magistrate failed to give any or any sufficient weight to the fact of the likelihood of the father being able to be granted a visa by Australian Immigration Authorities for the purposes of visiting his son on an annual basis if his son were to remain in Australia. Ground 5 is that the Federal Magistrate failed to give any or any sufficient weight to the fact that he could make orders regulating the time the mother spends with the child in Iran or Australia but realistically there is little capacity for enforcement of such orders. Ground 12 is that the Federal Magistrate erred in finding the likely effect of the separation of the child from one of his parents will be highly detrimental and significant but there is nothing his Honour could do about that, in that the latter part of such a finding was against the evidence or the weight of the evidence. Ground 16 is that the Federal Magistrate failed to find that the child could have a meaningful relationship with the father notwithstanding that the child was in Adelaide and the father in Iran.
While none of the other grounds of appeal were abandoned (save for ground 17), they were not the subject of any or any substantial oral argument before us.
The submissions of the mother
The thrust of the mother’s appeal as opened by her counsel is that the Federal Magistrate made a number of findings that were correct but when these findings are taken together they do not support, and are indeed inconsistent with the conclusion that the child should live with the father.
The findings identified by counsel for the mother are as follows:
91.1At paragraph 78, his Honour said with respect to the father’s ability to travel to Australia:
“78.I think I can infer the likelihood of the father being able to be granted a visa by Australian Immigration authorities for the purposes of visiting his son on an annual basis if the son were to remain here.”
91.2At paragraph 79 his Honour then said:
“79.There was more force in the point the father made about his having a more realistic opportunity of facilitating the mother spending time with the child if the child were placed with him on account of his better financial position and on account of the complexities associated with the wife returning to Iran, even if she took up the option of Australian citizenship in the near future. The mother herself has considerable obligations to the Iranian government in respect of the expenses associated with her going through […] school, the consequence of which are being exerted upon her relations in Iran. If she were to return to Iran with the child, even as an Australian citizen, the existence of the ex parte Iranian Court order in favour of the father would render it highly likely that she would not leave the country with the child. All of these things make it unlikely that she will be travelling with the child to Iran for the purposes of facilitating the father spending time with the child. It is even more unlikely that she would send the child there unaccompanied in the light of the existence of the Iranian Court order. In any event, apart from these matters, there is her financial position which is very poor and militates against her shouldering any share of the expenses associated with such travel.” (Emphasis added)
91.3At paragraph 124, in the context of discussing the willingness and ability of each of the parties to facilitate a relationship between the child and the other parent pursuant to s 60CC(3)(c) of the Act his Honour said:
“124.As far as the willingness and ability of each of the child’s parents to facilitate a proper relationship between the child and the other parent I have significant doubts in relation to the capacity of both of the parents in that regard. Whatever the necessities of her position in late 2006/ early 2007 the mother must have known that it was wrong to keep [A] from any form of contact with his father. The child was still suffering from bedwetting at the time of the trial. I had no evidence as to the source of that problem but it would not be surprising if the child had found his last year or two difficult particularly as it has been a time of significant change for him and significant absence of one of his parents. I am sceptical of the father’s commitment of sustaining a relationship between the child and the mother if the child were to live with him in Iran. I inferred from the evidence a capacity for disrespectful behaviour by the father towards the mother and, fuelled with the resentment I have referred to above, it would be unsurprising, if disappointing, that he would not ensure that lines of communication between the child and the mother remained open. I have similar reservations in the event that the child lived with the mother in Australia though her lack of support for the relationship between father and child would arise from more defensive motivations.” (Emphasis added)
91.4Then at paragraph 126, which we have previously set out, his Honour said:
126.There are competing considerations with respect to s.60CC(3)(e). I find that it will be almost impossible for the mother to facilitate the child spending time with the father in Iran if the child remains living with her. This is so because of the existence of the Iranian Court order, her indebtedness to the Iranian government and her understandable caution about returning in the light of her having successfully attained refugee status here relating to fear of persecution in that country. On the other hand, the father will, I find, have the financial resources and opportunity to visit the child in Australia on two occasions per year. This is a significant consideration. Visiting on two occasions per year will not constitute a meaningful relationship, of course, but it will at least mean the child will have ongoing contact of one kind or another with each of his parents. However, I am sceptical about the father’s willingness to facilitate time-spent with the mother if the child lives with him in any event. I can make an order to that effect, but it will, especially in the light of the Iranian Court order, have little practical impact. I think I can proceed upon the basis that if the child lives with the father, he will have no relationship at all with his mother whereas if the child lives with the mother he will have a very limited relationship with his father.” (Emphasis added)
In summary it was submitted that the Federal Magistrate found that the father was likely to be able to visit the child in Australia if the child lived with the mother, however the mother would be unlikely to be able to travel to Iran to visit the child and that the father is unlikely to facilitate the child spending time with the mother if the child were to live with the father in Iran. Therefore, it is contended that by making orders for the child to live with the father, the Federal Magistrate did not give sufficient weight to the fact that, on the findings of the Federal Magistrate, the child will have no relationship with the mother.
The expert evidence before the Federal Magistrate was that of the family consultant Mr M. Mr M said this in the course of his cross-examination by the counsel for the father:
“When one is confronted with the tyranny of distance, one has to arrive at some form of compromise because, do you agree with me, it’s highly undesirable that this boy severs totally relations with both parents? – I think it’s a tragedy for this child that he’s in this situation and he will lose one of his parents, and I agree, yes, it’s a tragedy.
But given that that’s the likely scenario, and having regard to his short and long-term interests, isn’t it better – preferable – to preserve some vestige of relationship than none? – Yes”
The mother complains that the Federal Magistrate failed to take this evidence into account at all.
The submissions of the father
The father’s counsel, supported we must say by the counsel for the Independent Children’s Lawyer submitted that the finding in paragraph 78 of his reasons (see paragraph 91.1 above) was not in fact open to his Honour and that the evidence indicated that the father would have extreme difficulty in coming to Australia. On that basis it is said that his Honour’s conclusion can be justified. As a result a considerable amount of time during the hearing of the appeal was spent by counsel for both parties and for the Independent Children’s Lawyer in referring us to the evidence surrounding the various immigration issues which arise; namely the father’s ability to leave Iran to travel to Australia (given his contractual obligations to the Iranian government), the father’s ability to enter Australia to visit the child (whether on a tourist visa or otherwise) and the mother’s ability to travel to Iran, either with the child or for the purposes of visiting the child in Iran. That evidence came from Mr G, a migration consultant.
Mr G gave the following evidence during cross examination by counsel for the Independent Children’s Lawyer with respect to the father’s ability to enter Australia:
“[MR PICKHAVER:] Suppose he leaves the country of his own volition, is there any problem in him returning back to Australia? --- Well, firstly he’s got to honour his agreement with the Iranian government and, without seeing his contract between himself and the Iranian government on the funding that he received from them, we’ve got no idea how long he’s required to stay in Iran. But in normal circumstances, if he served out his time, he could then apply to come to Australia under a skilled migration category, or even, when his child grows up, his child could sponsor him as a parent to come to Australia. But the other way would be a tourist visa, and a tourist visa would ask questions in it which would relate back to his computer record, because he’d have a migration record from Australia, and it would probably be referred to the integrity branch in Brisbane to decide whether or not he could have a visa to come to Australia.”
Then, after referring to the fact that the mother had obtained a protection visa on the basis of allegations of domestic violence, Mr G’s evidence continued:
“[MR PICKHAVER:] Does that have any effect with respect to any record as to the husband’s character so far as the Australian authorities are concerned?--- Yes, it would be on his migration record and there would be no escaping that.
When you say “no escaping it”, suppose he made an application for either a skilled migrant visa or a tourist visa, what would happen?---Under government policy it would be referred to the character assessment branch in Brisbane…
Would there be any record that would show up so far as Mr [Khalil] would be concerned when it was referred to that character assessment branch?--- The claims made against him would be on the computer and would be a matter of record.
What then is the process that would occur?---Well, the character assessment branch would be – and the integrity branch would then make a decision based on what they felt the evidence portrayed.
…
Are you able to assist his Honour, if you can, on what are the prospects of the husband being granted a tourist visa or a skilled residency visa on the basis of his skills, given that he has this apparent decision against him in relation to domestic violence?--- In a similar case some 10 years ago – 10, 12 years ago – the department were asked to take note of the court’s decision and the judge’s comments, relative to the fact that the father should be allowed to come back to visit the son. It is an unfortunate thing that in the department dealing with human nature and the – they have a very high turnover of staff, up to 20 per cent, so you find that people have different opinions, and unless there’s clear direction it’s very easy for them to say no.
…
Is it the case that he’s been granted that tourist visa, notwithstanding the fact that the mother has obtained a protection visa on the basis of domestic violence?--- I would assume that the department has given the visa because there was no other visa which they could give to give the person time to consider what they wanted to do whilst they remained in Australia, particularly in relation to a court matter, and whether or not there were any other methods that he could look at.
Is it likely to be relevant in any future application to come back to Australia that the husband has had a tourist visa as of now?---No, it wouldn’t have any relevance to – except to say that if he can show that he has performed and honoured the conditions of the criteria of the tourist visa and he leaves on time, then he’s got a plus to his record, that he has obeyed what the criteria laid down.
…
If the court directed that the child remained in Australia, are there any visas other than a tourist visa or the skilled migration visa that the Commonwealth government could issue to enable the father to visit his child here?---The only visa that could be granted for him to visit the child would be a tourist visa provided that it didn’t contradict or contravene any agreement between the Iranian government and the Australian government. The terms of the first visa are quite clearly laid out and say that the person must return to that country at the end of their studies. Then it would depend on the contract which the person signed with the Iranian government as to what conditions then remain, whether he’s allowed to leave the country, under what conditions he’s allowed to leave the country. If he were permitted to leave the country for the purposes of a visit to Australia, then it would be up to the Australian government to make a decision that he could have a tourist visa, whether it be a multiple entry visa or a single entry visa.”
Then in cross examination by counsel for the father Mr G said this:
“[MR MELLOWS:] If the court were to grant residence in favour of the mother and the boy stay [sic] here, the fact that his boy is to stay here – or in order to stay here by virtue of an Australian court order – wouldn’t be a criteria, would it, for extending the visa or granting any of the visas that you’ve mentioned?---It’s up to the court to direct if it felt that so inclined, but whether the department would then accept that direction is another question.
Well, in your experience has a visa ever been granted of that kind, that is, an extended tourist visa offshore or a professional visa – been granted offshore on the basis that the parent seeking it has a residence order in favour of the other parent in another country?--- The answer to that is yes, but not necessarily where there has been an obligation to another government on an education – the one before was a health requirement and the court directed the department to give consideration for the grant of the visa and the grant of a multiple-entry visa was given.
…
A record of complaints to the police of alleged domestic violence, however inaccurate, wouldn’t be checked for accuracy by the department, would it, as distinct from authenticity?---No, the department accepts prima facie the evidence that’s put before it.
Yes, and would the mere compiling of [sic] obtaining such records be the sort of thing that would result in a knock-back of such an application offshore by an applicant seeking such a visa?--- Yes
…
That, combined with an inability to discharge contractual obligations, would form an inseparable barrier to a successful application, would it not?---That would be normally the case. That’s correct.”
Finally, during cross examination by counsel for the mother, the father’s evidence on his ability to travel to Australia was put to Mr G:
“[MR CHILDS]: He said, “If I want to bring the child here” – that is on the assumption that he’s living in Iran with the child – “there’s more chance of me getting the visa to bring him here. Whereas, if I were going to come back and visit him here I probably won’t be able to get the visa.” Does that make sense to you? Does it look like he’s talking about the tourist visa situation and the like?---I don’t think there’s probably any justification for thinking that other than just an emotional point of view.”
We interpolate here that there were two issues of concern in relation to the father’s travel. Firstly can he leave Iran, and secondly, can he get into Australia. It is apparent though that there was really no issue about the former because the father’s own proposal was that he would accompany the child to Kuala Lumpur and the child would continue onto Australia with his grandmother to spend time with his mother. Thus the father himself had no concern that he could leave Iran with the child.
With the second issue, although there are difficulties, Mr G’s evidence was that the father had every chance of securing the necessary visa. We note that the father’s proposal to only travel as far as Kuala Lumpur with the child was not because he had any doubt about entering Australia, but because he wanted the mother to share the travel.
Counsel for the father, and again for that matter counsel for the Independent Children’s Lawyer also sought to justify the conclusion of the Federal Magistrate by submitting that it was not open to the Federal Magistrate to find, as he did, that if the child lived with the father he would have no relationship with the mother.
Counsel submitted that the “scepticism” of the Federal Magistrate with respect to the father’s willingness to facilitate the child’s relationship with the mother was not supported by the evidence.
Counsel for the Independent Children’s Lawyer referred to the father’s proposal that the child visit the mother in Australia twice per year, and that he was prepared to meet part of the cost of this travel and to accompany the child as far as Kuala Lumpur.
Counsel for the Independent Children’s Lawyer also referred to the father’s evidence that he would facilitate the child spending time with his maternal family, in particular his maternal grandmother.
However, we again interpolate here that despite this evidence we are satisfied that the Federal Magistrate was entitled to be sceptical regarding the father’s willingness to facilitate a relationship between the mother and the child. His Honour reached this conclusion based on an assessment of all of the evidence before him. The Federal Magistrate had the advantage of observing the father as a witness during the trial, and his Honour was in the best position to make an assessment of whether the father would facilitate the child spending time with his mother.
It is well established that not having the benefit of observing witnesses at trial places appellate courts at an obvious disadvantage. The following statement in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 by Lord Sumner has been approved in many decisions, including by the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167:
“…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial Judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”
Then of course there was the father’s actions in obtaining a custody order in his favour in Iran without notice to the mother, and without serving the documentation upon her. This does not indicate a willingness on the part of the father to promote a relationship between mother and child and to facilitate the child spending time with the mother.
We also accept that on the evidence it was open to his Honour to find that the mother is not in a position to return to Iran to visit the child or to facilitate the father spending time with the child in Iran. His Honour outlined at paragraph 79, and again at paragraph 126, the difficulties facing the mother with respect to any return to Iran, which included her obligations to the Iranian government and her poor financial position. Possible concerns the mother may have with respect to her safety were she to return to Iran were also raised before us. Again, we were not referred to any evidence to suggest these findings were not open to his Honour.
Conclusion
We do not accept the respondent’s submission that the findings made by the Federal Magistrate were not open to his Honour, and thus we turn to consider the principal ground of appeal relied upon, namely ground 6.
The relationship between a child and each of the parents is required to be considered in a number of sections of the Family Law Act. One of the objects of the Act, as outlined in s 60B, is to “ensure 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.” The benefit to the child of having a meaningful relationship with both of the child's parents is also a primary consideration in s 60CC.
The Federal Magistrate acknowledged relatively early in his reasons that due to the practicalities of the case, the child would have “very little opportunity of a relationship with the other parent.” Then when addressing the first primary consideration, his Honour said this:
“When one turns to the first of the two primary considerations set out in s.60CC(2) of the Act one has to recognise the impossibility of making orders in this case which give the child the opportunity to have a meaningful relationship with both parents. The parents will be living on opposite sides of the world. One of them will have the child. There will be very little opportunity for the other to have a meaningful relationship with the child.”
And, his Honour continued:
“The likely effect of the separation of the child from one of his parents will be highly detrimental and significant but there is nothing I can do about that.”
However, we do not agree that there was “nothing” his Honour could do. Accepting as we do that the findings in paragraph 126 were open to the Federal Magistrate, the options his Honour had were to order that the child live with the father, which would result in the child having “no relationship at all with the mother”, or order that the child live with the mother which would entail the child having a relationship with both parties albeit a limited one with the father.
The evidence before his Honour from the family consultant was that the child had a good relationship with both of his parents, that it would be a tragedy if the child’s relationship with one of his parents was severed, and that it was preferable in both his long and short term interests to preserve some vestige of relationship than have none.
In McCall and Clark [2009] FamCAFC 92 the Full Court in considering how a Court is to determine the benefit to a child of having a meaningful relationship with both of the child’s parents as required by s 60CC(2)(a) of the Family Law Act said this:
“118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.”
We did not consider that the Federal Magistrate gave appropriate weight to this primary consideration. He had the option of framing orders to ensure that the child has a meaningful relationship with both parents, but he failed to do so. The orders that he made are not supported by and in fact are inconsistent with all or at least part of his reasons.
Nor is this complaint confined to his Honour’s order that the child live with the father. Paragraph 5 of his Honour’s order provides:
“The father do all such things as may be reasonably required to facilitate the child spending the following time with the mother on two occasions per year for periods for not less than twenty-one (21) days and not less than twenty-eight (28) days namely in January/February and August/September such time-spent to occur in Australia.”
His Honour could only have made this order for the father to facilitate the child spending time with the mother if he was satisfied that the father would do so. However, his Honour had clearly stated he was “sceptical” of the father’s willingness and ability to facilitate and support the child’s relationship with the mother. His Honour had also indicated that he would not be surprised if the father did not ensure that the lines of communication between the mother and child remained open. This order may therefore be ineffectual. We note that his Honour did acknowledge that any order he made for the father to facilitate the child spending time with the mother would have “little practical impact”, however, he proceeded to make an order in these terms.
In effect the complaint also became one of lack of adequate reasons by the Federal Magistrate. In other words, given his Honour’s findings, his Honour failed to explain why he made the orders that he did. Thus, it is not possible to discern the path by which the result has been reached (Bennett and Bennett (1991) FLC 92-191).
His Honour did say this in paragraph 136 of his Reasons:
“In all of the circumstances I have come to the view that the child should live with his father in Iran. The evidence persuaded me that his relationship with his father is a firmer one; I am concerned about his not having the opportunity to relate [sic] extended paternal and maternal family members if he remains with his mother. I am concerned about the risk for further deterioration of the relationship between the mother and the child should the child remain with her and the child come to the realisation as to how limited his relationship with his father will be in the future. But it has been a finally balanced exercise.”
However, as can be seen his Honour failed to address his crucial finding that if the child lived with the father the child would have no relationship at all with the mother. In particular, for example, there is no attempt by the Federal Magistrate to suggest that the factors identified in paragraph 136 outweigh this finding. He simply does not refer to it.
We are therefore satisfied that the Federal Magistrate fell into error by failing to adequately consider one of the primary considerations in a finding of what is in the best interests of the child, namely a consideration of the benefit of the child having a meaningful relationship with both parents and how that meaningful relationship could be achieved.
We are satisfied that there is merit in this ground of appeal, and on this basis the appeal should be allowed.
Other grounds of appeal
Given the conclusion we have reached with respect to Ground 6 of the appeal, we do not consider it is necessary to address the mother’s other grounds of appeal.
Re-exercise of discretion or remission
Counsel for the mother indicated that in the event the appeal was allowed, his preferred approach was that we re-exercise the court’s discretion and that the matter not be remitted to the Federal Magistrates Court for rehearing.
Counsel for the father also submitted that there was sufficient material for this Court to re-exercise the discretion in the event the appeal was allowed.
However, we raised with counsel, as is required by Allesch v Maunz (2000) 203 CLR 172 whether, in the event that the appeal was allowed and we sought to re-exercise the discretion, they would seek to rely on any further evidence. Counsel for both the mother and the father indicated that in the event the appeal was allowed, they would like the opportunity to put further evidence to the Court. Counsel for the Independent Children’s Lawyer also indicated there may be the possibility of obtaining expert evidence with respect to the status of Iranian Law.
In the circumstances, we consider that we are not in a position on the evidence available to us to be able to re-exercise the discretion. Given that the parties have indicated they may wish to lead further evidence, we consider it is more appropriate that this matter be remitted to the Federal Magistrates Court for rehearing.
Costs of the appeal
At the conclusion of the hearing before us submissions were sought from the parties in relation to the costs of the appeal both in the event that the appeal was allowed and in the event it was dismissed.
We were advised that all parties were legally aided in this matter and all parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal was successful.We consider it appropriate given the circumstances in which we have allowed the appeal that costs certificates be granted. As this matter is to be remitted to the Federal Magistrates Court for rehearing, it is appropriate that certificates be granted for both the costs of the appeal and the cost of the retrial.
I certify that the preceding 130 paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 30 October 2009.
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