VAZIRI & MADDISON

[2014] FamCA 897

FAMILY COURT OF AUSTRALIA

VAZIRI & MADDISON [2014] FamCA 897

FAMILY LAW – CHILDREN – Interim Parenting – Application filed while children were visiting Australia on holiday – where children ordinarily resident in New Zealand – best interests of child resident in another country

Family Law Act 1975 (Cth) ss 63, 67ZC, 68B

De L v  Director-General, New South Wales Department of Community Services (1996) 187 CLR 640
Pascarl & Oxley (2013) FLC 93-536
Zanda & Zanda [2014] FamCAFC 173
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Vaziri

RESPONDENT: Ms Maddison

FILE NUMBER: PAC 4807 of 2014

DATE DELIVERED: 21 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 October 2014

REPRESENTATION

SELF-REPRESENTED LITIGANT: Mr Vaziri

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ms Cantrall

Ms Boldiston of Bankstown Legal Aid

Orders

1. That pursuant to s 67ZC of the Family Law Act 1975 the children of the relationship, namely:

   (a)       S; and

   (b)       T;

   born … December 2000 (“the children”) are to be returned to New Zealand.

2. That by way of implementation of Order (1), the children’s names are to be removed from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia forthwith.

3. That the mother is to provide the following Undertaking to the Court:

   (a)That I will cooperate with the orderly conduct of the proceedings including returning to Australia with the children for the purposes of the preparation of a family report.

1. That the father is to provide the following Undertaking to the Court:

   (a)That I will pay for the costs associated with the mother and the children’s return to Australia in the event that a family report is ordered

2. Father’s application for Interim Orders is dismissed.

Notation

1. The mother intends to take steps to commence family law proceedings in New Zealand (including attending to any necessary pre-action procedures) within 28 days of the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaziri and Maddison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4807 of 2014

Mr Vaziri

Applicant

And

Ms Maddison

Respondent

REASONS FOR JUDGMENT

Introduction

1. S and T are twin girls who are almost 14.  They have been living in New Zealand for the last five years since their parents separated and for lengthy periods before that time with their mother.

2. They came to Australia with their mother, approximately three weeks ago to spend some time with their father during the school holidays.  Without any prior notice the father cancelled the children’s return air tickets and their names have been placed on the airport watch list, which means that they cannot be removed from Australia.

3. At around the same time as cancelling the air tickets, the father brought a parenting application, including seeking final orders that he and his wife exercise joint parental responsibility in relation to the children, that the children live with him and spend time with their mother each alternate weekend, half the school holidays and on special days, and that the parties be restrained from removing the children from Australia for five years.  He seeks interim orders that the children’s names be placed on the airport watch list and that the parties be restrained from removing them from Australia and seeks the appointment of an Independent Children’s Lawyer.  Essentially, the father wishes for the parenting proceedings to proceed in the usual manner and for the children to remain in Australia until the proceedings are complete.

4. The mother’s position is that the father’s application is essentially an international relocation case, which should be heard in New Zealand as that is the children’s habitable residence and she seeks for his application to be summarily dismissed.  The mother also seeks an order that the children be returned to New Zealand and that their names be removed from the watch list.

Background

1. Virtually all of the background to this matter is not in dispute between the parties.  The parents, who were never married, commenced a relationship and commenced living together in 2000.  Their twin girls were born in December 2000 and throughout the period the parents were together the mother and the children lived in New Zealand for lengthy periods.  The father says that there were three occasions where the mother and children lived in New Zealand for at least six months whilst the mother says there were two occasions where she and the children lived in New Zealand for 12 to 13 months.

2. There is no dispute that when the parties separated in 2009, which the mother says occurred on 1 May, the mother returned with the children to New Zealand where they have lived ever since.  Although the father says that the mother relocated the children to New Zealand without his consent and initially told him it was only for a holiday, he does not dispute that the children have lived with their mother in New Zealand for the last five years, and that they have only visited Australia on two occasions.  He also agrees that he has taken no steps until very recently to obtain any parenting orders.

3. The two visits to Australia were both paid for by the father and were for the purposes of the children spending time with him.  The first occasion was in about December 2011 when the mother and children returned to Australia for 14 days.  The second occasion, which commenced approximately three weeks ago was also to be a visit for two weeks but the father cancelled the return tickets for the children (but not for the mother).

4. At the same time, the father commenced these proceedings, by filing an Initiating Application on 9 October 2014 and, as he sought an order that the parties be restrained from removing the children from Australia and that their names be placed on the airport watch list prior to the hearing, the mother and children have effectively remained stranded in Australia.

5. The mother says, and it appears that the father does not dispute, that she and the children have been relying upon a friend for accommodation and money for food and day-to-day living expenses during the time that they have remained in Australia.  The pastor of the mother’s church in New Zealand has also given her money so that she can pay for return flights to New Zealand.  She has no other savings and has exhausted her holiday pay.  She is concerned that she may lose her job if she does not return to New Zealand immediately and that the children were also to have commenced school in New Zealand over a week ago.

6. The father has not provided any financial support for the children or the mother during the additional time they have been required to remain in Australia.

7. Since the time of their return to living in New Zealand in May 2009 the children have consistently lived in City B where they are attending school and progressing satisfactorily academically and socially.  They live with their mother in a three bedroom house, across the road from a church where the mother works and the children are involved in faith-based and social activities.  There are a number of close family members who live nearby and the children spend a great deal of time with the extended maternal family.  They also participate in extracurricular activities such as sport and activities associated with the school and church and have a close knit local friendship group.

THE LAW

1. The Full Court of the Family Court in Zanda & Zanda [2014] FamCAFC 173 recently considered the authorities relating to cases in which children, who are ordinarily resident in a foreign jurisdiction, are the subject of parenting proceedings in Australia. At [106], the Court said that the correct test for determination of forum, when dealing with children’s issues has not been in doubt since ZP v PS (1994) 181 CLR 639. In that case at 660 Brennan and Dawson JJ said:

   Once the jurisdiction conferred by s 63 of the Family Law Act1975 on the Family Court in custody proceedings is effectively invoked – and there is no doubt that both parties invoked that jurisdiction in this case – s 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court’s power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of the child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of court of competent jurisdiction in the other country.

2. The court in Zanda also referred to another recent Full Court decision in Pascarl & Oxley (2013) FLC 93-536, which also reiterated that the doctrine of forum non conveniens is not applicable where the child is within the jurisdiction.  Instead, in exercising the jurisdiction which has been conferred upon it, the Family Court must determine what is in the best interests of the child.  Later in that case, the Full Court said [at 86]:

   … the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court.  Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test which will apply.

3. The father’s interim application is for an injunction restraining the parents from removing the children from Australia, an order that the children reside with him and an order appointing an Independent Children’s Lawyer in the proceedings.

4. The injunctions in relation to the children may be made by a court “as it considers appropriate for the welfare of the child” under s 68B of the Act.  The order with respect to residence is made under a provision which prescribes the best interests test.

5. The mother is seeking an order that she be permitted to remove the children from Australia to New Zealand and that the father’s Initiating Application be dismissed.

6. So far as the first order is sought by the mother is concerned, that the children be returned to New Zealand, the mother seeks a summary order made pursuant to the welfare power under s 67ZC, in respect of which the best interest test is also prescribed.

7. Section 67ZC gives the Court broad powers to make orders relating to the welfare of children. The mother’s application for a summary order is based on this power. It is submitted on behalf of the mother that such an order will be in the best interests of the children as determined by the considerations relating to best interests in the Act. In addition, it is contended on behalf of the mother that New Zealand is the appropriate forum for matters relating to parenting of these children to be determined and that the Court could also be confident that the domestic laws of New Zealand will deal with matters relating to parenting in a proper fashion.

8. So far as I understand the father’s case, he is concerned that there are some risks of harm to the children if they are returned to New Zealand and also has concerns about his own capacity to participate in proceedings in New Zealand for reasons related to his own criminal history.

Are the orders sought in the children’s best interests?

1. The central question for me to determine is, whether the orders sought by the mother or the father are in the children’s best interests.

Primary Considerations

1. The first of the primary considerations is the benefit to the children of having a meaningful relationship with both of their parents.  As I understand his case, the father attaches particular weight to this consideration as he wants to have a continued involvement in “looking after (his) children”.  Having regard to the meaning in the authorities of “meaningful relationship” as a relationship which is important or significant, it is difficult to conclude that the children have, since their parents had separated, had the benefit of having a meaningful relationship with their father.  They have only seen him on two occasions for a matter of weeks over a five-year period.  It is clear that if the children are to have the benefit of a meaningful relationship with both of their parents, that appropriate parenting orders need to be made by an appropriate authority.  It may be that this could be achieved through the father’s Initiating Application in the Family Court, though it is more likely that it would be more appropriately dealt with by the Court in New Zealand where the children are habitually resident.

2. I am of the view that allowing the children to return to New Zealand, so long as appropriate safeguards are in place so that the father’s proceedings are not jeopardised, that the children’s return to New Zealand will not deny them the benefit of having a meaningful relationship with both of the parents.  The mother has indicated that she will undertake to cooperate with the orderly conduct of the proceedings, which would include returning to Australia with the children for the purposes of the preparation of a family report, if required. The father has indicated that he will undertake to pay for the costs associated with the mother and the children’s return to Australia for the preparation of a family report.  Further, the mother has indicated that she intends initiating proceedings in New Zealand in relation to parenting in the event that the children are returned.

3. Under the father’s proposal that the children live with him until the proceedings are determined, the children would experience a meaningful relationship with their father, but there is a real risk that there relationship with their mother who has been their primary care-giver may be jeopardised.  The mother’s life is completely based in New Zealand, including her home and her employment and she has no current capacity to support herself in Sydney.  Realistically, the proceedings may take many months or longer to complete and the mother may not be in the position to remain in Australia.

4. There is no basis upon which I could conclude that it would be in the children’s best interest for them to be severed from the benefit of a meaningful relationship with the mother who has been primarily responsible for their care throughout their life.

5. The second primary consideration of the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence does not arise in this matter.  There is no allegation or evidence that if the children are returned to New Zealand they will be exposed to harm of this type or that they will be exposed to it if they remain in Australia as proposed by the father.

Additional Considerations

1. So far as the additional considerations are concerned, the views of the children are unknown.  Very little is known about the relationship of the children with their father, though he certainly expresses what appears to be a genuine desire to develop a relationship with them.  It is beyond dispute that the children’s primary carer throughout their life and particularly in the last five years has been the mother.  There is also evidence, which is not contradicted, that the children have a close relationship with many members of the maternal family in New Zealand.

2. In the last five years the mother alone has made all of the decisions about major long-term issues in relation to the children.  The father has certainly spent some limited time with the children and there is undisputed evidence that he has provided some financial support for them including, in particular, funding their trips to Australia.

3. The most critical of the additional considerations relating to the best interests in this matter is the likely effect of any changes in the children’s circumstances as a result of the orders proposed by the father.  If the orders sought by the mother are made, the children’s circumstances will not change and there is no reason to suggest that this would have any deleterious effect upon them.  If the children were in effect required to remain in Australia while the proceedings are ongoing, this would be a massive disruption to their home life, school life, sporting and social life and extended network of friends and family.

4. The father gives no evidence of the practical arrangements he proposes and according to his affidavit in recent times his own personal circumstances have changed significantly and it appears he proposes that the children live with him at the paternal grandparents’ home.  There is no evidence of any arrangements he has made with respect to schooling or to support the likely problems that would arise with such a sudden transition.  In addition, as previously referred to, it cannot be guaranteed that the mother will be able to remain in Australia herself and separation from the mother where she has been the primary caregiver would undoubtedly have a significant impact upon these children.

5. Another significant consideration in this matter related to the best interests is the capacity of the father to provide for the needs of the children, including the emotional and intellectual needs.  The way in which the father brought this application, in the context where he paid for the children to spend some time with him in Australia, and cancelled their return tickets without any prior notice or discussion with the mother and bringing an application for the children to live with him when he has seen them on only two occasions in five years, shows that he has limited capacity to understand the impact of his actions and proposals upon the children.

6. It is the father’s case that the mother has shown an incapacity to keep the children safe and relates an incident where the girls were approached by a member of the church community in New Zealand to participate in a photographic session in which the girls were to be naked or near naked. However, it is common ground that this information was provided to him by the mother herself, on the basis that as the children’s father, he needed to know about the incident.  Further, on the mother’s version, she immediately took appropriate protective action in reporting the incident to police.  The mother also says that the alleged offender has been dismissed from the mother’s Church, and that there is a protection order in place so that he is not able to come near the church or their home and that she has had no further communication with the man in question.

7. In my view, the uncontested evidence about the children’s progress, including academically and socially and about the children’s living circumstances in New Zealand, indicates that the mother is capable of providing for the needs of the children.

8. The mother has demonstrated that she has an appropriate attitude to the children and to the responsibilities of parenthood, and has an intention to bring the parenting proceedings in New Zealand to regularise issues in relation to the children’s parenting.  Although, as I have previously indicated, the actions of the father in relation to his application to this Court and in the orders he seeks are not particularly child focused, he has been responsible in paying for the children to spend time with him in Australia and seeks to be a responsible and involved parent in the bringing of this application.

9. Applying the best interest’s considerations to the mother’s application under the welfare power for a summary order that the children be returned to New Zealand, I am of the view that it would be in the children’s best interests for this to occur.  I am also of the view, in regard to the father’s application for an order that the children reside with him, that it would not be in the children’s best interests for this order to be made.  Having found that the order for the children to be returned to New Zealand is in the children’s best interests, I also find that it is not “appropriate for the welfare of the children” to make the injunction sought by the father to restrain the parties from removing the children from Australia as requiring them to remain in Australia is contrary to their welfare.

1. In addition to seeking an order that the children be returned to New Zealand, the mother also seeks that the father’s Initiating Application be dismissed. Although it was submitted on behalf of the mother that in seeking summary dismissal it was not being suggested that the father’s application had absolutely no merit, the mother relied heavily upon her submission that New Zealand is the appropriate forum for a consideration of parenting orders and that the Court could have confidence in the domestic law of New Zealand to deal properly with such an application.  This issue was referred to by the High Court in De L v  Director-General, New South Wales Department of Community Services (1996) 187 CLR 640 in relation to the Hague convention and Australian law implementing when the High Court said:

   The regulations reflect the objects of the Convention to settle issues of jurisdiction between the contracting states by favouring that forum, which has been the habitual residence of the child.  The underlying premise is that, once the forum is located in this way, each contracting state has faith in the domestic law of the other contracting state to deal in a proper fashion with matters, relating to the custody of children under the age of 16.

2. In this case, however, although the mother has said that she has an intention to bring parenting proceedings in New Zealand and although I have no particular reason to doubt her bona fides, there are currently no proceedings on foot in New Zealand and there is no requirement for her to initiate them.  If the father’s application before this Court is dismissed and the mother does not initiate proceedings in New Zealand the issue of appropriate parenting orders may never be resolved.

3. The father says, and this is not in dispute, that he may have difficulties entering New Zealand due to his criminal history which includes a conviction for possession of a firearm for which he received a two year suspended sentence.  He says in his affidavit that he is unaware whether he is able to travel to New Zealand. Although his inability to travel to New Zealand will not necessarily inhibit his capacity to participate in proceedings in that country, there are currently no proceedings in existence and no guarantee that there will be.

4. In relation to the application for summary dismissal, it is also of significance that the father’s application came before the Court on very short notice given the circumstances that he was limited in the time given to the application in a busy duty list and that he was not legally represented. In these circumstances, especially where each of the parties seems to acknowledge that a proper parenting arrangement should be implemented, in my view it would be unjust to summarily dismiss the father’s application.

5. Although in my view, the proper forum to deal with a parenting application for these children is New Zealand, this is not a sufficient basis to dismiss the father’s application, at this stage.

6. As previously indicated, the mother has agreed to give an undertaking to cooperate with the orderly conduct of these proceedings, including, if necessary, to attend herself and with the children for the purposes of the preparation of a family report and the father has agreed to give an undertaking that he will pay for the airfares and other expenses required for those purposes.

7. The other order sought by the father on an interim basis is that an Independent Children’s Lawyer be appointed to represent the interests of the children.  In my view, it is premature to make such an order at this stage when the future of these proceedings is unknown.  For the reasons given, I make the orders sought by the mother, except for the order summarily dismissing the father’s Initiating Application, and I dismiss the father’s application for interim orders. The father’s application for final orders in this matter will therefore proceed in the usual fashion.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 October 2014 judgment delivered.

Legal Associate: 

Date:  22 October 2014