Unidi and Amali
[2019] FamCA 217
•1 March 2019
FAMILY COURT OF AUSTRALIA
| UNIDI & AMALI | [2019] FamCA 217 |
| FAMILY LAW – JURISDICTION – PARENTING – Where parenting proceedings commenced by mother in Australia and father in Country B, a non-Hague Convention country – Where the child has been living in Country B with her relatives since early 2018 – Application adjourned and parties at liberty to re-list application if child is in Australia. |
| Family Law 1975, s.111CD |
| Zaro & Zan [2019] FamCA 4 |
| APPLICANT: | Ms Unidi |
| RESPONDENT: | Mr Amali |
| FILE NUMBER: | BRC | 14418 | of | 2018 |
| DATE DELIVERED: | 1 March 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 1 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G Gunn |
| SOLICITOR FOR THE APPLICANT: | Bhardwaj and Associates Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr F Dzelalija |
| SOLICITOR FOR THE RESPONDENT: | Tonio Lawyers |
Orders
That the Application of the mother filed 11 December 2018 and amended on 15 February 2019 and the father’s Response filed 1 February 2019 and amended on 27 February 2019 be adjourned to the Registrar’s List on a date to be fixed.
Either party may seek to have this matter relisted before the Honourable Justice Baumann (and if his Honour is unavailable, before another Justice of the Family Court of Australia) not earlier than seven (7) days after the child X (born … 2014) has been returned to the Commonwealth of Australia from Country B.
That the costs of today be reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Unidi & Amali has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 14418 of 2018
| Ms Unidi |
Applicant
And
| Mr Amali |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
(Settled from oral reasons delivered)
A little girl, X (born in 2014, and therefore nearly five years of age) was born in Country B; has Australian citizenship but has been living in Country B which is a non-Hague Convention country since 2 January 2018.
No proceedings were filed in this Court until the mother filed an application on 11 December 2018 some 11 months after the child went to Country B. During 2018 the evidence is, and I accept, that the mother visited the child in Country B on three separate occasions: in March, August and then October 2018. As recently as 1 January 2019 the father, who was also born in Country B but who is working in Australia and has done so for some time, commenced proceedings in Country B for the “guardianship” of the child.
Today is the first court date of the mother’s application to which the father has responded. The parties have filed recent affidavits and submissions. I indicated at the commencement of today’s hearing that it seems to me the intent of the application and response, although I could launch some criticisms about the drafting, is effectively that:
a)the mother wishes the child, X, to return to Australia;
b)the mother asserts the Court has jurisdiction to make orders in relation to the child;
c)the father’s response was to the effect that the child not return to Australia; the Court does not have jurisdiction in Australia to deal with the child, and/or if the Court does have jurisdiction then Australia is a clearly inappropriate forum, he having it seems regularly invoked the jurisdiction of Country B.
Mr Gunn of Counsel for the mother and Mr Dzelalija, solicitor advocate for the father, had been engaged in discussions whilst the matter was stood down. During that time I provided them with a copy of a recent judgment of my own (Zaro & Zan [2019] FamCA 4) that dealt in part with a parenting dispute relating to a child in a non-Hague Convention country, and the reference to Section 111CD of the Family Law Act 1975 (Cth) which had not been raised in any of the material or submissions that has already been produced in this case.
After the parties have had quite lengthy discussions, no doubt with the benefit of their assembled legal teams, I was informed that the parties have some consent orders they may wish the Court to make. I have not seen the consent orders because of the following concerns I have:
a)On the evidence currently relied upon up until, effectively, half an hour ago, the father is challenging the jurisdiction of the Court and is challenging whether Australia is still, on the evidence, a “clearly inappropriate forum”;
b)Even if, as I am told by Counsel at the bar table, the parents have agreed that the child return to Australia sometime before the end of April 2019, that date is shaped not by anything associated with the best interests of the child it seems to me, but by the availability of the father to return to Country B to collect the child. Upon inquiry to Mr Gunn, Counsel for the mother, as to the mother’s availability to go to Country B to collect the child and return her to Australia, Mr Gunn indicated the mother is available at her own cost to go to Country B as early as Monday;
c)The current evidence suggests that there could be some difficulties with the pending proceedings in Country B and the likelihood that it may involve other persons, being the persons who have been caring for this child since January 2018 in circumstances where the mother and father have both been living in Australia, and may well have something to say about the child leaving the country. Whilst the father might say he will take steps to discontinue proceedings in Country B, the best evidence of that intention is to do that, up until half an hour ago, was not reflected in the father’s evidence at all.
d)At the core of any parenting issue, once jurisdiction and proper forum issues have been determined, are what orders are in the best interests of the child. Without any evidence of the domestic law of Country B from an expert in Country B law as is the requirement when dealing with extraterritorial conflicts, I am prepared to accept that it will be a premise of the Country B jurisprudence that orders ought be made in the best interests of children;
e)Mr Gunn earlier today made a submission that there was some critical timeframe in which the matter ought be dealt with because when the child turns five in March 2019, some other impact of Country Bn domestic law will have an effect. Again, it is difficult to be satisfied about that in the absence of expert evidence from a lawyer from Country B. However, it seems to me that if there is some change likely to occur by 24 March 2014, that the need for the child to be returned to Australia, as the parents now apparently agree, would be ideal. There is no evidence before me, if in fact that is these parties’ agreement, why it would be impossible for the mother – in fact, she says it is possible – to return to Country B immediately, collect her daughter and return her to Australia.
In those circumstances, and without evidence that any proceedings in another jurisdiction are not being pursued by the father, or for example by those who have been her primary carers for over twelve months, this really does become a very simple dispute. This is maybe not even a dispute as to parenting arrangements for an Australian child in the Australian jurisdiction where both parties wish the child to live and where they can exercise substantial and significant care responsibilities.
For those reasons, in the exercise of jurisdiction, I do not propose to deal with the application of the mother or the father today. I am prepared to have these applications re-listed before me on notice given within seven days of the child returning to Australia. No satisfactory explanation has been given to me, nor is there any evidence which would explain why - when both parents are living in Australia and this little girl is living with family in Country B - it would not be in her best interests for the mother to return to Country B immediately and collect her. I can only infer from the history of this matter that if the mother felt she was able to bring the child back to Australia earlier she would have done so.
I am concerned that there are other issues of which I am not currently fully apprised. If there are, these issues could be well and truly dealt with by the mother and father of this child consistent with their apparent agreement today shaped by Counsel and the solicitor advocate for the father.
Lest it be thought that I am not dealing with the matter today for convenience, this is the first return date of this matter. It is in a duty list. There would not have been sufficient time today to deal with all the arguments on such a complex issue. It would inevitably have been adjourned. But, in my view, the parents deserve credit for, through their Counsel and solicitor advocate, apparently reaching an agreement about what is in the best interests of their child.
In my view, fundamental to that arrangement is that the child return to Australia. If that is the parents’ position genuinely, and if there are no other strings attached to such an agreement as was to some degree alluded to by Mr Gunn earlier today about property interests in Country B then, in my view, their agreement is best demonstrated by putting into place what both parents can do in respect of their child and that is decide where they live before an intervention by a Court.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 1 March 2019.
Associate:
Date: 11 April 2019
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