Zanda and Zanda
[2014] FCCA 1326
•2 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZANDA & ZANDA | [2014] FCCA 1326 |
| Catchwords: FAMILY LAW – Parenting – jurisdiction to make Airport Watchlist Order – respondent restrained from leaving the Commonwealth of Australia – order for parties to cause the return of children from Lebanon to the Commonwealth of Australia – referral of papers to investigate Centrelink claims and citizenship. |
| Legislation: Family Law Act 1975, ss.69E, 114 International Convention on the Rights of the Child, article 9 |
| Cowling & Cowling [1998] FamCA 19 Waugh & Waugh (2000) FLC 93-052 Mullin & De Bry (2006) FLC 93-293 Karim v Khalid (2007) 38 Fam LR 300 JJT & CTT [2004] FamCA 1104 |
| Applicant: | MS ZANDA |
| Respondent: | MR ZANDA |
| File Number: | PAC 1889 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 13 June 2014 |
| Date of Last Submission: | 13 June 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 2 July 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW Bankstown |
| Counsel for the Respondent: | Mr Heazlewood of Counsel |
| Solicitors for the Respondent: | Elie Rahme & Associates |
ORDERS
The wife shall advise the husband forthwith upon her being in possession of funds sufficient to meet airfares for each of the children T born (omitted) 2001, U born (omitted) 2003 and V born (omitted) 2005 together with one accompanying adult to travel from (omitted), Lebanon to Sydney, Australia.
Within 48 hours of being advised by the wife of her holding such funds the husband shall advise the wife of the arrangements that have been made by him to secure the travel of T, U and V to the Commonwealth of Australia including:
(a)The name of the person who will be travelling and accompanying the children;
(b)The flights proposed to be organised and the cost of same including departure time from (omitted), arrival time at Sydney and flight number and airline details;
(c)The full name, date of birth, passport number and other relevant information with respect to the accompanying adult.
Forthwith upon receipt of the above information Ms Zanda shall arrange, book and pay for the flights nominated, such flights to be booked as economy fares.
In the event the husband shall fail, neglect or refuse to provide advice to the wife of the above matters, then forthwith upon the expiration of the period of 48 hours from the wife’s advice to the husband, the wife shall be at liberty to make such arrangements as she may desire to cause the three children, T, U and V to travel from (omitted), Lebanon to Sydney, Australia and accompanied by such person or persons as she may desire and arrange.
Each of the husband and the wife shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children T, U and V to be delivered into the Commonwealth of Australia no later than 12noon Friday 18 July 2014.
Orders 1-5 of the Orders made by consent 19 May 2014 (being Orders restraining Ms Zanda born (omitted) 1981 from leaving the Commonwealth of Australia and requesting that her details be recorded upon the Airport Watch List to secure compliance with that Order) are discharged.
Request a copy of these Orders be forwarded forthwith to the Marshall of the Federal Circuit Court of Australia and to the Australian Federal Police together with a request that Ms Zanda be forthwith removed from the Airport Watch List.
Orders 2 of the Orders made 28 April 2014 (being Orders restraining the husband Mr Zanda born (omitted) 1975 from leaving the Commonwealth of Australia and requesting that he be placed upon the Airport Watch List) shall be discharged forthwith upon arrival into the Commonwealth of Australia of each of the children T, U and V.
Request a copy of the Judgment delivered 2 July 2014 and the documents filed by the parties in these proceedings be referred to the Department of Immigration and Citizenship.
Request a copy of the Judgment delivered 2 July 2014 and the documents filed by the parties in these proceedings be referred to the Department of Human Services (Centrelink).
List these proceedings for Final Hearing 7-9 October 2014 inclusive (and to continue until completed).
Each party shall file and serve all Affidavit material upon which they propose to rely at hearing same to be filed and served no later than close of business 20 September 2014 and any material filed after that date shall not be read (subject only to a right to counsel for each party to make further submissions with respect to the issue).
Each party shall no later than close of business 18 July 2014 file and serve:
(a)A Minute of Interim Orders (if any) proposed by them; and
(b)One Affidavit each setting out all material relied upon by them with respect to interim issues.
Pursuant to section 13C of the Family Law Act1975 the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution, such Family Dispute Resolution to occur if at all possible on or before 25 July 2014.
Adjourn the proceedings for interim hearing to 9.30am 29 July 2014.
Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9.00am on 7 August 2014 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their children the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the children interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
IT IS NOTED that I have not at this time made an Order for the appointment of an Independent Children’s Lawyer notwithstanding the consent of each party to such appointment and note further that such appointment will be made on the first available opportunity after the children T, U and V arrive within the Commonwealth of Australia and/or will be made in Chambers with the written consent of each party and subject to satisfaction of the above condition.
Pursuant to s.69ZW(1) I order and direct the NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)Mr Zanda born (omitted) 1975;
(ii)Ms Zanda born (omitted) 1981;
(iii)T born (omitted) 2001;
(iv)U born (omitted) 2003;
(v)V born (omitted) 2005;
(vi)W born (omitted) 2006;
(vii)X born (omitted) 2008;
(viii)Y born (omitted) 2010; and
(ix)Z born (omitted) 2012
or any of them.
(b)Any notification of suspected family violence affecting the above children or any of them;
(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(d)Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer)and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.
Direct each party to file a Case Outline directly by email to my Associate no later than close of business 1 October 2014, such Case Outline to incorporate:
(a)The material that is relied upon by that party;
(b)The material from which tender is to be made in that party’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events;
(d)A draft trial plan (preferably agreed).
Two Arabic (Lebanese) interpreters are ordered for the hearing on 7-9 October 2014, the interim hearing on 29 July 2014, and also for the Child Inclusive Child Dispute Conference 7 August 2014 for the assistance of both parties.
IT IS NOTED that publication of this judgment under the pseudonym Zanda & Zanda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1889 of 2014
| MS ZANDA |
Applicant
And
| MR ZANDA |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings relating to future parenting arrangements for seven children, namely:
a)T born (omitted) 2001 (presently aged 12 years);
b)U born (omitted) 2003 (presently aged 10 years);
c)V born (omitted) 2005 (presently aged 9 years);
d)W born (omitted) 2006 (presently aged 7 years);
e)X born (omitted) 2008 (presently aged 5 years);
f)Y born (omitted) 2010 (presently aged 3 years); and
g)Z born (omitted) 2012 (presently aged 2 years).
The parties to the proceedings are the parents of the children, namely:
a)Their mother, Ms Zanda born (omitted) 1981 (presently aged 32 years). Ms Zanda is the Applicant in the proceedings; and
b)Their father, Mr Zanda born (omitted) 1975 (presently aged 39 years). Mr Zanda is the Respondent to the proceedings.
Evidence considered
In dealing with the proceedings at this interim/interlocutory stage I have read and considered each of the documents identified by the parties and comprising the following:
a)Ms Zanda's Initiating Application filed 24 April 2014.
b)Ms Zanda's Affidavit filed 30 May 2014 (which consolidates earlier Affidavits).
c)An Application in a Case filed by Ms Zanda 28 April 2014.
d)The Response of Mr Zanda filed 6 June 2014.
e)The Affidavit of Mr Zanda filed 6 June 2014.
In addition I have received into evidence a copy of a bank statement for Mr Zanda which is marked as an exhibit.
I have also received a Case Outline Document from each party (which in the case of Mr Zanda includes an outline of submissions and incorporates a second document titled “Supplementary submissions in relation to injunctions”.
Counsel for each of the parties has made further oral submissions.
I have been referred by Counsel for each of the parties to a number of authorities relied upon by them with respect to various positions which I am asked to adopt. That case law will be enumerated in due course together with further case law which has been researched and relied upon by me.
As the proceedings are, at this stage, dealt with on an interim and interlocutory basis neither party has been cross-examined and their written evidence has been accepted on its face and subject to the limitations referred to in authorities such as Cowling & Cowling [1998] FamCA 19, Goode & Goode (2006) FLC 93-286 and Marvel & Marvel (No.2) [2010] FamCAFC 101.
To the extent that there is agreement between the parties as to factual matters I will enumerate those shortly. I will also identify issues in dispute between the parties, although findings of fact with respect to same need not be made for the purpose of these proceedings and are thus not made.
History of proceedings
The proceedings were commenced by Ms Zanda by her Application Initiating proceedings filed 24 April 2014 and Application in a Case filed on 28 April 2014. On 28 April 2014 an attendance before a Registrar occurred and the Registrar referred the proceedings to me to entertain an ex parte application for certain relief.
Ms Zanda sought the totality of relief sought in her Application in a Case and as follows:
a)That until further Order the Respondent father Mr Zanda be restrained from leaving the Commonwealth of Australia.
b)That the mother have sole parental responsibility for all seven children.
c)That all seven children live with Ms Zanda.
d)That Mr Zanda do all reasonable and necessary acts to ensure that the three eldest children, T, U and V be returned to the Commonwealth of Australia, within 30 days.
e)That Mr Zanda be restrained from entering or approaching within 100 metres of the mother’s place of residence (the four youngest children living with their mother) or the school or educational institution attended by the children or any of them.
f)That both the father and all seven children’s names be placed upon the Airport Watchlist (or perhaps more correctly that a request to the Australian Federal Police be made for this to occur).
In dealing with the matter on an ex parte basis a short extempore judgment was delivered. Written Reasons have been requested by the parties and will be made available together with these reasons.
On the first return date and on an ex parte basis I declined to order the majority of relief sought by the wife particularly as regards any order with respect to the three elder children who were, at that time and continuing to be resident in the Republic of Lebanon.
Orders were made by me as follows:
1.By reference to Part 5 of the Federal Circuit Court Rules 2001, declare that I am satisfied that it is appropriate for the Application in a Case filed 28 April 2014 to be dealt with by the Court on an ex parte basis.
2.That until further Order the respondent father Mr Zanda, born (omitted) 1975 be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent's name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent's name on the Watch List until the Court orders its removal.
3.That until further Order each party, Ms Zanda, born (omitted) 1981, and Mr Zanda, born (omitted) 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children T (born (omitted) 2001); U (born (omitted) 2003); V (born (omitted) 2005); W (born (omitted) 2006); X (born (omitted) 2008); Y (born (omitted) 2010); and Z (born (omitted) 2012) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until the Court orders its removal.
4.Pursuant to section 68B and pending further Order, the Respondent Father Mr Zanda shall be is hereby restrained and injuncted from:
a. Entering upon or approaching within 100 metres of the place of residence of the mother and the children W, X, Y and Z or any school or educational institution attended by those children or any of them;
b. Taking or attempting to take the children W, X, Y and or Z into his care whether personally or through any other person or agent.
5.Vacate the return date of the Initiating Application namely, 3 June 2014.
6.Adjourn all extant Applications for further mention and directions to 9.30am on 19 May 2014.
7.Grant leave to the solicitor for the Applicant to amend the return date of the service copies of documents filed to date and to do so prior to service upon the Respondent.
8.The Applicant shall do all things within her power to cause the Application in a Case and Initiating Application and supporting Affidavit’s to be served upon the Respondent or otherwise brought to his attention as soon as practicable and shall in addition, cause a copy of these Orders and if available, reasons for Judgment to be served upon the Respondent.
On the adjourned return date of the proceedings 19 May 2014 Mr Zanda appeared with Counsel. Mr Zanda had not, at that time, filed any document, save a Notice of Address for Service. Mr Zanda sought on that date to discharge the injunction which restrained his departure from the Commonwealth of Australia.
Mr Zanda, through his Counsel, also sought (notwithstanding his primary position seeking the discharge of the restraint imposed upon him) an Order which would similarly restrain Ms Zanda from departing the Commonwealth of Australia and for her name to also be included upon the Airport Watchlist. That Order was made by consent.
It would appear that the basis upon which Mr Zanda instructed his Counsel to seek such relief was a concern, on his part, that whilst he was restrained from departing the Commonwealth of Australia, that Ms Zanda may travel to Lebanon and seek, through self-help, to obtain possession of the three elder children and return them to Australia.
The proceedings could not be accommodated on that date and were adjourned to 13 June 2014 with a view to hearing and determining such interim and interlocutory applications as were before the Court. Directions were made for each party to file further material and, in the case of Mr Zanda, to file a Response.
Orders sought by the parties
The wife continues to seek relief in accordance with her Application in a Case and to the extent that the relief has not already been dealt with. Thus Ms Zanda seeks the continuation of the restraint upon Mr Zanda departing the Commonwealth of Australia and in addition seeks Orders which would cause the three eldest children to be brought to the Commonwealth of Australia. During submissions Ms Zanda indicated her willingness and ability to fund the cost of airfares for the three children to travel to Australia if relief were granted and on the basis that Mr Zanda asserted his inability to meet such cost. Ms Zanda also indicated that relatives of hers (noting that both she and Mr Zanda are presently restrained from departing the Commonwealth) would be in a position to assist in the children’s delivery to Australia if so Ordered.
Mr Zanda, through his Counsel, indicated that he no longer sought to press for the Order which had been sought by him 19 May 2014 and which restrains Ms Zanda departing the Commonwealth of Australia. Accordingly, that Order will, in due course, be discharged by consent. Thus it is entirely possible that if Orders were made as sought by Ms Zanda that she would be in a position to travel herself, should she so desire, to uplift the children and return with them to Australia.
For his part Mr Zanda seeks interim Orders as per his Response as follows:
1. That any Rule or Regulation which would otherwise prevent these proceedings being dealt with without delay and on the next listed Court date, be dispensed with.
2. That an Independent Children’s Lawyer be appointed to represent such Children as the Court may determine as being sui juris.
Notwithstanding the limited relief sought on an interim basis by Mr Zanda through the Response filed by him on 6 June 2014, it is clear and apparent that he seeks additional relief and which is enumerated in his Response as being a plea for Final Orders.
The reality of Mr Zanda’s position is that he seeks Orders as follows:
1. The children in respect of which these proceedings relate are the children T born (omitted) 2011, U born (omitted) 2003, V born (omitted) 2005, W born (omitted) 2006, X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2012.
2. That the Applicant be permanently restrained from further proceeding with her Initiating Application and that any questions as to the custody, residence, country and/or parent in which or with whom the children live, be determined according to the laws of Lebanon and in particular, in respect of the ## Court in Suit Number ## in (omitted), Lebanon.
3. Declaration that the Courts of Australia seized with jurisdiction to hear and determine the issues raised for determination in these proceedings are a clearly inappropriate forum.
4. In the alternative, Order that this Court, if it holds that it does have jurisdiction, refrain from exercising same.
5. In the alternative, Order that this Court, if it holds that it does have jurisdiction, refrain from exercising same in respect of the children T, U and V.
6. Declaration that the Court does not have power to restrain the Respondent from leaving Australia.
7. Declaration that the Court does not have power to order or request the Australian Federal Police or any other federal institution to take any coercive action which interferes with the free and unfettered movement of the Respondent to and from Australia.
8. That the Applicant pay and bear the Respondent’s costs of an incidental to these proceedings, on an indemnity basis.
9. In the event that this Court elects to exercise jurisdiction in relation to the children the subject of these proceedings or any of them, then the Respondent seeks the following Orders:-
9.1 That those children residing in Australia return forthwith to reside in Lebanon;
9.2 If the mother elects to return to Lebanon with the children, that the children:-
9.2.1. Live with the father; and
9.2.2. Spend time with the mother as may be agreed.
The parties’ positions on a final basis
Ms Zanda seeks Orders on a final basis which would invest her with sole parental responsibility for all seven children and which would have all seven children reside with her. Ms Zanda does not, by her Initiating Application, propose any Order with respect to the children’s time or communication with their father.
Mr Zanda by his Response proposes relief in the alternative and if and only if the Court determines that it is appropriate to exercise jurisdiction with respect to any of the children, Mr Zanda seeks that the four youngest children (presently in Australia) “be returned” by Ms Zanda to Lebanon and that all seven children then live with Mr Zanda and spend time with their mother, provided that she elects to return to Lebanon, “as may be agreed” (presumably by and between the parties).
It is submitted in Mr Zanda’s case that
“It is important, for the purpose of enabling the Court to determine precisely what law is to be applied, to identify clearly the actual relief which is being sought…At the time of preparation of these submissions, the actual relief being sought has not been clarified.”
The above submission would not sit comfortably with the clear and specific relief sought by Ms Zanda. She clearly seeks Orders for sole parental responsibility of all seven children and for all seven children to live with her.
Factual background
The factual circumstances of this case are, on their face, somewhat complex and confused. However, the basic chronology of events is relatively straight forward once the evidence of the parties is compared.
There are a number of troubling and concerning issues raised by the evidence of the parties principally relating to:
a)Issues of family violence; and
b)The alleged and disputed intention of the parties jointly and/or individually to live (and thus have the children or some of them live) permanently in Lebanon rather than Australia.
A number of financial issues would appear to arise as a consequence of the evidence of the parties and each of them and being financial issues which would cause concern as to whether Federal benefits (particularly Family Tax Benefit) have been obtained appropriately or not and whether Mr Zanda’s citizenship (obtained in 2006) was obtained on the basis of full, frank and candid disclosure or otherwise.
Having regard to the latter of the above issues I had raised with Counsel for each of the parties, when the matter was first called on, my desire to hear submissions from each as to why referral of the papers should not be made to the Department of Human Services and the Department of Immigration and Citizenship respectively. When the matter was ultimately heard, no submissions with respect to those issues were made.
What is clear and relatively agreed between the parties are the following facts and circumstances:
(omitted) 1975
Mr Zanda is born in (omitted), Lebanon.
(omitted) 1981
Ms Zanda is born in (omitted), Victoria, Australia.
January 2001
The parties meet. The parties first meet approximately two weeks prior to their marriage. The parties are first cousins. The marriage between the parties was arranged by others prior to their meeting.
(omitted) 2001
The parties marry in (omitted), Lebanon. The parties then remain in Lebanon until Mr Zanda obtains a visa for the purpose of travel to Australia.
June 2001
Mr Zanda obtains a visa and the parties travel to Australia. The parties thereafter reside in Australia (or at least neither party gives any evidence as to any departure from Australia) until 12 March 2007.
June 2001- September 2004
The parties live with Ms Zanda’s sister and her husband. The husband of Ms Zanda’s sister is Mr Zanda’s brother.
(omitted) 2001
First child of the relationship T born.
(omitted) 2003
Second child of the relationship U born.
September 2004
The parties move from the home of Ms Zanda’s sister and obtain their own separate rental accommodation. Ms Zanda alleges that from September 2004 until September 2006 that she was forbidden and precluded by Mr Zanda from contacting, speaking with or spending time with any member of her family. That allegation is denied by Mr Zanda.
(omitted) 2005
Third child of the relationship V born.
(omitted) 2006
Fourth child of the relationship W born.
(omitted) 2007
The husband and wife jointly travel to Lebanon with the then four children of their relationship.
(omitted) 2007
The parties both return to Australia with three of the four children. V remains in Lebanon with the paternal grandmother and other paternal family members. Upon returning to Australia, 11 May 2007 and the next departure T, U and W live jointly with the parties.
(omitted) 2008
The fifth child of the relationship X is born.
August 2008
Ms Zanda travels to Lebanon with the four children then living with the parties namely, T, U, W and X. Mr Zanda remains in Australia. Whilst in Lebanon all five children (including V) live with Ms Zanda.
November 2008
Ms Zanda returns to Australia with W and X. The three eldest children T, U and V remain in Lebanon. Ms Zanda and Mr Zanda then live in Sydney with W and X. Ms Zanda alleges she returned to Australia having been contacted by Mr Zanda who informed her “your Centrelink payments are going to stop. You have to come back to Australia to renew it.”
February 2009
Ms Zanda returns to Lebanon with W and X. The then five children of the relationship T, U, V, W and X live with Ms Zanda in Lebanon. Mr Zanda remains in Australia during this absence.
April 2009
Ms Zanda returns to Australia with V, W and X. Both T and U remain in Lebanon. V, W and X then live with their parents in Sydney.
August 2009
Both Mr and Ms Zanda travel to Lebanon with V, W and X and after the first two days in Lebanon all of the then five children live with the parties whilst they are in Lebanon.
September 2009
Mr and Ms Zanda return to Australia with W and X. T, U and V remain in Lebanon living with paternal family members.
(omitted) 2010
The sixth child of the relationship Y is born. Ms Zanda alleges that she had intended to return to Lebanon with the children in her and Mr Zanda’s care in Australia and so as to reunite all five children and care for them but remained in Australia to allow Y to be born in Australia and allow the parties to be entitled to receive the baby bonus.
December 2010
Ms Zanda travels to Lebanon with W, X and Y. Upon arriving in Lebanon Ms Zanda assumes the care of the three elder children T, U and V and all six children live with her in Lebanon. The evidence is unclear as to whether Mr Zanda travelled with Ms Zanda on this occasion.
June 2011
Ms Zanda (and possibly Mr Zanda) return to Australia with X and Y only.
September 2011
Ms Zanda travels to Lebanon with X and Y and assumes the care of all (then) six children.
March 2012
Ms Zanda returns to Australia with the child Y. The five elder children T, U, V, W and X remain in Lebanon cared for by the paternal grandmother. Ms Zanda alleges that she returned to Australia at the behest of Mr Zanda to enable the seventh child Z to be born in Australia and for the parties to obtain the baby bonus.
(omitted) 2012
The seventh and last child of the relationship Z is born.
July 2012
Ms Zanda travels to Lebanon with Y and Z and assumes the care of all seven children. Mr Zanda remains in Australia.
June 2013
Mr Zanda travels to Lebanon and from that date until 24 March 2014 all seven children live with Mr and Ms Zanda in Lebanon.
March 2014
Mr and Ms Zanda travel to Australia with W, X, Y and Z. Upon landing at Melbourne airport and with assistance and intervention of the Australian Federal Police, Ms Zanda separates from Mr Zanda and travels with the four children to Sydney. Those four children have lived with Ms Zanda since 24 March 2014 and have not spent time or communicated with Mr Zanda. Mr Zanda remained in Melbourne on 24 March 2014 and his present whereabouts are neither known nor disclosed by him in his evidence.
In addition to the above a number allegations which are not agreed are raised including (to the extent that they are relevant for present purposes):
a)Significant allegations of family violence by Ms Zanda. These include allegations by Ms Zanda of both physical and verbal abuse as well as the deliberate retention of one or more of the children in Lebanon to ensure that Ms Zanda did not leave the marriage. Those allegations are denied in their entirety by Mr Zanda.
b)An allegation by Mr Zanda (see paragraph 26 of his Affidavit) that “…in 2006… we decided to stay and live in Lebanon and bring the children up there.” Mr Zanda alleges that Ms Zanda agreed to this proposal and adds:
“Family values are better and there is less social distractions for kids in Lebanon… There is a very strong sense of community in Lebanon. In Lebanon culture there is a strong patriarchal involvement. My brother Mr N is the head of our family now that my father has died. The family bonds are very close.”
The parties own property (although it is unclear whether that property is owned in Mr Zanda’s sole name or in the joint names of the parties) comprising a unit in (omitted) together with business premises from which a business is operated (presumably although it is unclear from his evidence by Mr Zanda) as well as land held in Mr Zanda’s name in (omitted).
Whilst they have been in Lebanon the parties would appear to have alternated their residence between the property in (omitted) and a mountain village (omitted) (where Mr Zanda was born) and where his brother continues to reside (and is the Mayor). The paternal grandmother ordinarily lives in the village also.
At present the four youngest children W, X, Y and Z live with Ms Zanda at an address which is not disclosed by her in these proceedings.
The three eldest children T, U and V continue to reside in Lebanon. It is unclear where they are presently residing. Mr Zanda’s evidence suggests that the children are being cared for by his mother and brother in the unit at (omitted) owned by the parties (or one of them), although Mr Zanda’s evidence is clear that each of those persons (the paternal grandmother and uncle) need to return to the village (omitted) in “the mountains.”
Mr Zanda, in seeking the discharge of any injunction precluding his departure from the Commonwealth of Australia, pleads “I wish to return to Lebanon so I can resume my care for the children”. This is a somewhat curious allegation as even on Mr Zanda’s evidence he would not appear to have ever had the sole care of those three children or any of the children of the relationship. Indeed, for the majority of the periods that the children or any of them have been absent from Australia (for various periods since 12 March 2007), Mr Zanda has largely remained in Australia and has at best returned to Lebanon for the following periods:
a)12 March 2007 to 11 May 2007;
b)16 August 2009 to 24 September 2009;
c)12 June 2013 to 24 March 2014.
It is unclear from the evidence whether Mr Zanda had also travelled to Lebanon for the period 16 December 2010 to 6 June 2011.
It is also clear from the evidence that the children’s places of residence have been as follows.
a)With respect to T he has lived in Australia from birth until 12 March 2007, from 11 May 2007 to 20 August 2008. T has, since 20 August 2008 lived in Lebanon.
b)U has lived in Australia for the same periods as T. He has accordingly lived in Lebanon since 20 August 2008. Both his and T’s care in Lebanon has been provided by Ms Zanda (or the parties jointly when they have both been present) when present in Lebanon and otherwise by various members of the paternal family.
c)V has resided in Australia from birth until 12 March 2007, as well as for a period from 23 April 2009 to 16 August 2009. Since 16 August 2009 V has lived in Lebanon in the care of various paternal relatives when Ms Zanda has not been present.
d)W has lived in Australia from birth until 12 March 2007, together with:
i)A period from 11 May 2007 to 20 August 2008;
ii)A period from 16 November 2008 to 24 February 2009;
iii)A period from 23 April 2009 to 16 August 2009;
iv)A period from 24 September 2009 to 16 December 2010;
v)From 24 March 2014 to the present.
e)X has resided in Australia for the following periods:
i)From 9 July 2008 to 20 August 2008;
ii)16 November 2008 to 24 February 2009;
iii)23 April 2009 to 16 August 2009;
iv)24 September 2009 to 16 December 2010;
v)6 June 2011 to 15 September 2011;
vi)From 24 March 2014 to date.
f)Y has lived in Australia for the following periods:
i)From 18 November 2010 to 16 December 2010;
ii)6 June 2011 to 15 September 2011;
iii)From 24 March 2014 to date.
g)Z has lived in Australia for the following periods:
i)From 18 April 2012 until 15 July 2012;
ii)From 24 March 2014 to the present.
All of the children, such as have been born from time to time, have lived with Ms Zanda in Lebanon for the following periods:
a)12 March 2007 to 7 May 2007;
b)20 August 2008 to 16 November 2008;
c)24 February 2009 to 23 April 2009;
d)16 August 2009 to 24 September 2009;
e)16 December 2010 to 6 June 2011;
f)15 September 2011 to 12 March 2012;
g)15 July 2012 to 24 March 2014.
Prior to the 12th of March 2007 the four eldest children lived permanently with both of their parents in Sydney. The children that have returned to Australia with the parties since August, 2009 have thus been in Ms Zanda’s continuous care.
Issues for determination
A number of issues are raised in the submissions of the parties and I propose to deal with each of them individually. The above chronology of events will assist and inform a number of the decisions to be made and I will refer to the case law which the parties have raised or which is relied upon by me in dealing with each issue.
1. Does the Court have jurisdiction to restrain the husband from leaving the Commonwealth of Australia?
Mr Zanda's Counsel submits with respect to this issue that “there is no doubt that the Family Law Act contains the power to make Orders effectively, though indirectly, restraining the movement of a parent” (relying upon Sampson v Hartnett (No.10) [2007] FamCA 1365 at [24-26]).
I have also been referred to the decision of Lindsay J in Hudson & Hudson [2009] FMCAfam 792 wherein His Honour said:
“It is a not insignificant matter to oblige a responsible adult person to live in a metropolitan area of a capital city where he or she does not want to reside. It is a substantial interference with the liberty of an individual and I would only take that step if I thought there were compelling circumstances relating to the welfare of the children that required that substantial interference with the father’s rights to be ordered. I am not so satisfied.”
It is otherwise submitted by Mr Zanda's Counsel that the Court lacks jurisdiction to make either an Order restraining Mr Zanda’s departure from the Commonwealth of Australia or a request to the Australian Federal Police for Mr Zanda’s name to be included on the Airport Watchlist and so as to effectively preclude his departure from the Commonwealth of Australia.
In support of this proposition I have been referred to the decision of MJ & JBD (2005) 32 Fam LR 617 at [27].
With respect to the issue I am conscious of the Full Court’s decision in Restein & Restein [2003] FamCA 1146. Therein their Honours Kay, Holden and Monteith JJ, were dealing with an application similar to that made in these proceedings (i.e. restraining a party departing the Commonwealth). His Honour Kay J, quoted and adopted the comments of Guest J in the primary judgment (at paragraph 53) as follows:
53. In my view, the Court should not lightly exercise a power to restrain a party’s freedom to leave the jurisdiction. That is a serious restraint upon any citizen. If the husband did fail to return to Australia, that fact may alone frustrate the powers of the Court, but does not however by that assertion alone, establish a likelihood that he would so act.
Their Honours did not specifically turn their attention to the jurisdictional basis upon which such a restraint might be made but it was clearly accepted by all three of their Honours that there was a sufficient albeit unidentified jurisdictional basis. The jurisdictional basis was not otherwise challenged by the parties.
Their Honours also referred to the earlier decision of the Full Court (comprising Finn, Kay and Holden JJ in RK & SK [2000] FamCA 1045).
Coleman J (sitting as a single Judge Court of Appeal from a decision of a Federal Magistrate) in MJ & JBD (2005), said as follows (paragraph 24):
It appears to this Court that the power to grant the injunction sought by the mother [an injunction seeking to restrain the father departing the Commonwealth] was conferred by s 114(3) of the Act. As the wording of the relevant portions of s 114(3) were identical to those of s 68B(2), little turns on this conclusion for present purposes.
At paragraph 25 His Honour opined by reference to the Full Court’s earlier decision of Waugh & Waugh (2000) FLC 93-052, that the relevant test in determining whether such an injunction should be granted was whether it was “…necessary… to prevent the abuse or frustration of the court’s process in relation to the matter in its jurisdiction”. His Honour also opined that it was necessary that the Court act to prevent such frustration with a minimum of interference extending to and concluding with an injunction if considered appropriate and the only means by which such frustration could be avoided.
The Full Court in Mullin & De Bry (2006) FLC 93-293 as well as Liatos & Liatos [2008] FamCAFC 111 (being a bench comprising Byrant CJ and Finn and Boland JJ) discussed the appropriate test for discretion in granting injunctive relief and referred to and adopted the High Court’s decision in Australian Broadcasting Corporation v O’Neill (2005-06) 227 CLR 57 (paragraph 65) wherein Gummow and Hayne JJ (in quoting the majority decision of Kitto, Taylor, Menzies and Owen JJ in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618) opined as follows:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief…The second inquiry is…whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
The Family Court added, after referring to the above passages, “…it is sufficient that the plaintiff shows a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial.”
Whilst discussion of the relevant test for the exercise of discretion occurred, there was, again, no real discussion as to the basis upon which the Court’s jurisdiction to grant such an injunction would be founded.
Indeed, there are a myriad of cases in which relief of the nature sought by Ms Zanda has been granted without a specific discussion of the jurisdictional basis for same. However, the most erudite discussion of the jurisdictional basis arises in a decision of Cronin J in Fallon & Bashandi [2013] FamCA 672.
His Honour Cronin J accepted that section 69E of the Family Law Act 1975 provided a sufficient basis for jurisdiction, for an Australian Court exercising jurisdiction under the Act to entertain an application for Orders with respect to children absent from the jurisdiction.
Section 69E provides:
69E Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
relevant day, in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court—the day on which the application is filed; or
(b) in any other case—the day on which the application instituting the proceedings is made.
Indeed His Honour was faced with a circumstance wherein the mother and child the subject of the proceedings were present in Egypt and subject to a departure ban which precluded them returning to Australia at that time. Ms Zanda, in these proceedings, has given evidence of similar concerns although there is no evidence which would enable a finding to be made that her concerns are valid.
His Honour then turned his mind specifically to the jurisdiction upon which an injunction of the type sought by Ms Zanda might be founded. At paragraph 66 His Honour referred to the decision of Dixon J in Glover & Walters (1950) 80 CLR 172 and His Honour accepted in that case that Dixon J had no doubt that the High Court of Australia had the power to issue a writ of ne exeat colonia (a writ to prevent one party to the dispute from leaving the Court’s jurisdiction in a proper case). Cronin J went on to opine:
Dixon J made clear the writ was not to be issued except with care and where what he described as “real ground appears for believing that the defendant is seeking to avoid the jurisdiction or for apprehending that if the defendant is allows to depart the plaintiff will lose his debt or be prejudiced in his remedy.”
I pause at this point to note that the basis upon which Ms Zanda seeks the continuation of the injunction precluding Mr Zanda’s departure from the Commonwealth of Australia is in aid of her application seeking final parenting Orders with respect to the children and, in particular, her interlocutory motion that each of the parties do all things necessary to bring the three eldest children T, U and V to the Commonwealth of Australia for the purpose of the proceedings.
At paragraph 67 Cronin J considered the power given to the Court by section 114(3) which section is in the following terms:
114 Injunctions
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
His Honour then opined that the power under the section 114(3) permitted:
an injunction in aid of enforcement. The basis for making such a wide order is said to lie in any case in which it appears to the court to be “just or convenient to do so”…
At paragraph 69 Cronin J concluded that whilst he was satisfied (as Coleman J was above) that section 114(3) gave a jurisdictional basis for the relief that the positive exercise of discretion would:
… require the wife to establish the strong probability that the orders she…would reasonably anticipate she will have will be thwarted if the husband’s freedom was not curtailed. The wife must show that there is sufficient evidence to satisfy the Court that it should not accept the husband’s undertaking that he will return.
I note in these proceedings (the factual circumstances of which have some real parallels with those considered by His Honour Cronin J) that Mr Zanda:
a)Has not offered any undertaking to return.
b)Has not set out or given any evidence of his present circumstances whilst in Australia.
c)Decries his financial situation and asserts, consistent with the document tendered on his behalf, that he has no savings at all, save the sum of $100.75 in a Lebanese bank account (leaving aside that the statement corroborates Ms Zanda’s assertion that the account, in recent past, held over $20,000 and which balance was significantly reduced by a $17,000 withdrawal).
d)Puts through his Counsel the rhetorical question, put I accept on his instructions, of “who will support Mr Zanda if he is required to remain in Australia? Will the Federal Circuit Court support him?” I make clear that taking Mr Zanda’s evidence on its face he is clearly entitled to work in Australia (having Australian citizenship) and his own evidence is that he has worked extensively in Australia as a (occupation omitted) and had chosen to remain here at times (including when his wife and children were absent in Lebanon) for the purpose of earning a much greater income than was possible in Lebanon and then returning that income to Lebanon to improve the overall financial position of the parties whilst never renouncing the position which he asserts had been adopted by him in 2006 (and presumably prior to his application for citizenship) that he would live permanently in Lebanon.
e)Mr Zanda is silent on any proposal with respect to the children other than that they would all live with him in Lebanon and spend time with their mother provided she is also living in Lebanon.
f)Mr Zanda is silent as to any proposal for the children travelling to Australia and does not offer any suggestion that the children would be brought to Australia for any purpose or at any time.
g)Mr Zanda has no significant ties to Australia. As indicated above Mr Zanda owns property (whether substantial or not cannot be ascertained) in Lebanon but does not own any property in Australia.
h)Mr Zanda does not speak English or certainly does not speak or read English sufficiently well to enable him to swear his Affidavit without a jurat of interpretation and he has had the assistance of an interpreter provided by the Court throughout the proceedings.
In light of the above matters I am satisfied that the Court has jurisdiction to both:
a)Make an Order restraining Mr Zanda from departing the Commonwealth of Australia; and
b)To request the Australian Federal Police to place Mr Zanda’s name upon the Airport Watchlist to give effect to same.
In opposition to the later proposition, Counsel for Mr Zanda has referred me to the decision of Molisi v Minister for Immigration & Multicultural Affairs (2001) 27 Fam LR 474. In that case Drummond J was dealing with an application whereby an Order had been made seeking to restrain the Minister from exercising certain duties and functions. Drummond J found that there was no jurisdictional basis for such restraint.
The request that is issued (in the usual and common form, indeed, that drafted and promulgated by the Australian Federal Police) to place a person’s details on the Airport Watchlist and to intervene to preclude a person departing the Commonwealth of Australia, is an order routinely made by the Court. I am satisfied that the request is equally valid whether relating to a child or an adult when the request is in aid of a restraint imposed by the Court.
The Court is not, by requesting that the Australian Federal Police undertake certain actions, in any way dictating or directing the Commissioner or Officers to undertake any particular action but simply requesting that they do so. The request (indeed the entire Airport Watchlist scheme) is in aid of the Court’s jurisdiction and in aid of enforcement of orders made by the Court by way of restraint or injunction and to avoid wilful or inadvertent breach thereof.
2. Should the Court restrain the husband? And, if so, on what basis?
It is, again, to be noted that the husband, through his Counsel, suggests that the relief sought by the wife is less than clear.
From the time that these proceedings were commenced by Ms Zanda it has been clear that she seeks an Order that all seven children live with her in Australia and that she have sole parental responsibility for them.
The wife also seeks an Order which would compel Mr Zanda to do all things within his power to cause the children to be delivered into the Commonwealth of Australia.
It is instructive to consider the husband’s evidence (partially addressed in the above portion of this judgment) as to his desires and intent with respect to the children and these proceedings.
One of the difficulties in these proceedings, in comprehending the evidence of the parties, is the manner in which Mr Zanda’s material has been drafted. The Affidavit of Mr Zanda is drawn in the nature of a pleading. It is extraordinarily difficult to follow answering, as it does, specific paragraphs of Ms Zanda's Affidavit. Mr Zanda thus embarks upon a process of indicating his denial, his lack of knowledge of or his advice to not answer certain portions of Ms Zanda’s evidence. His Affidavit is far from a narrative and cannot be read or understood other than by simultaneously reading or cross-referencing Ms Zanda’s material. An affidavit should be a narrative of fact rather than a detailed and itemised pleading.
The above difficulties aside, it is clear from Mr Zanda’s evidence that he does not propose to reside in Australia. He makes clear (paragraph 26 of his Affidavit) that “in 2006… we decided to stay and live in Lebanon and bring the children up there.”
Notwithstanding this express intent and action thereupon Mr Zanda applied for and pursued an application for Australian citizenship. That would appear to have been potentially mischievous although not particularly relevant or germane to this determination. That circumstance is, however, relevant in that action was then taken to act upon that suggested desire and intent (although Ms Zanda denies that it was her own, she having been born in Australia and desired to remain living in Australia) by travelling to Lebanon in early 2007 and whether at that time or prior thereto purchasing a unit in (omitted) which, whilst ever the parties or either of them have been in Lebanon, has become the family home.
Mr Zanda proposes that whilst they were in Lebanon in early 2007 that he suggested to his wife:
“Let’s go to Australia where I can earn more money so that we can make some more capital go back to Lebanon and get better established” (at paragraph 20) and “there was never any intention in either 2007 or 2008 to live permanently in any country other than Lebanon” (paragraph 21).
Mr Zanda pleads that it is necessary for him to return to Lebanon so that he can “care for our three older children” (paragraph 23) and that he and those three children (and subject to his prosecuting an application, whether before this Court or a Lebanese Court, the four younger children also) can then live permanently in Lebanon.
Mr Zanda again, at paragraph 25 of his Affidavit, disavows any intent to live permanently in Australia or any connection with Australia other than to indicate:
“… I have training and have worked in Australia as a (occupation omitted), Ms Zanda and I agreed that we would make money in Australia where I could earn a higher salary than I could back in Lebanon and when we raised enough capital we would return to Lebanon and build a house there. We changed our minds [presumably with respect to building a house rather than living permanently in Lebanon] and so in 2007 we purchased our home unit and I purchased the café [not otherwise referred to in Mr Zanda’s evidence] in 2009. I also purchased the building where the café is located.”
Mr Zanda does offer at paragraph 27 of his Affidavit:
“I understand a Watch List Order has been imposed by the Court. I will comply with all Orders imposed on me by the Court, however I would dearly love to see all my children. I respectively submit that Orders should be made to enable me to spend time with my children here in Australia as well as in Lebanon.”
It is to be noted that Mr Zanda has not made any application via his Response for any such Order.
What is clear from Mr Zanda’s evidence is that he intends to return to Lebanon as soon as he is able to do so and to then live permanently in Lebanon. That is of course his right and entitlement.
Ms Zanda has properly filed an Application with this Court seeking to invoke the Court’s jurisdiction and seeking to invoke the Court’s jurisdiction to obtain parenting Orders with respect to all seven children.
I will deal shortly with the issue as to whether this jurisdiction is the appropriate forum for the determination of all issues with respect to all children. However, on the basis that the Application is presently before the Court and if it is determined to be appropriately before the Court it will be necessary, to enable the proceedings to be properly addressed and forensically prepared, for all seven children to be available for, if nothing else, a Child Inclusive Child Dispute Conference and, as the parties jointly seek, the appointment and effective preparation of an Independent Children’s Lawyer.
Ms Zanda seeks an Order requiring that Mr Zanda cause the three eldest children to be delivered to the Commonwealth of Australia. To enable the proceedings, if they are to continue, to be properly prepared and prosecuted that is, I am satisfied, a necessary step.
The Order restraining Mr Zanda from departing the Commonwealth of Australia had been made at first instance to ensure that Ms Zanda's Application (including the interim and interlocutory plea) could be dealt with. Accordingly the Order was made at that time (albeit on an ex parte basis) in aid of the Court’s jurisdiction and pending the determination of the wife’s Application for such relief.
The wife, at this time, presses her Application (which I have previously declined to deal with on an ex parte basis) for the delivery into the Commonwealth of Australia of the three elder children and, again, the Order which is sought, restraining Mr Zanda from departing the Commonwealth of Australia, is in aid of that jurisdiction.
I have no satisfaction, in light of Mr Zanda’s evidence and the matters noted above, that if Mr Zanda were free to leave the Commonwealth of Australia that he would return. Indeed, his own evidence indicates that he has no real connection to this jurisdiction and he does not submit to it.
I have also been referred by Counsel for Mr Zanda to the decision of Mullane J in Anstis & Anstis & Anor [1999] FamCA 841. I am satisfied that the approach adopted by me and the Orders which I propose to make are not inconsistent with the reasoning of His Honour therein.
In the above circumstances and noting the comments from authorities quoted above I am satisfied that:
a)Ms Zanda's Application and the conduct of her case (particularly as regards securing the delivery into the Commonwealth of Australia, of the three eldest children for the purpose of an expeditious determination of these proceedings) would be frustrated if Mr Zanda were permitted, until those three children have entered the Commonwealth of Australia, to depart.
b)If Mr Zanda were to depart the Commonwealth of Australia I have no satisfaction that he would comply with any Order which required the three children to be delivered into the Commonwealth of Australia nor return to deal with or address the proceedings.
c)If Ms Zanda was ultimately successful in obtaining the relief she seeks, then unless the three elder children were present in the Commonwealth of Australia there would be no means by which she could enforce such Orders as she may obtain.
d)On the above basis I am satisfied that Ms Zanda would likely suffer significant prejudice absent such relief.
e)I am satisfied that the prejudice which would be experienced by Mr Zanda (if any) is outweighed by the prejudice Ms Zanda would suffer. Indeed, it is clear from Mr Zanda’s own evidence referred to above that Mr Zanda has willingly been present in Australia for significant periods of time for the purpose of earning income (to return to Lebanon) and claiming and obtaining social security benefits (which I will deal with at the conclusion of this judgment).
f)I am satisfied on the basis of the evidence as it presently stands (albeit untested and in many respects highly contested) that Ms Zanda has a sufficient likelihood of success to justify, in the circumstances, the preservation of the restraint upon Mr Zanda.
g)I am satisfied that absent Mr Zanda’s restraint in Australia, albeit that to some extent this would be perceived by Mr Zanda as his being “held ransom” to compliance with an Order for the delivery of the three elder children, that Mr Zanda would not willingly deliver into the Commonwealth of Australia the three elder children.
h)If Mr Zanda were to depart the Commonwealth of Australia and not return clearly the proceedings could continue in his absence. However, his absence (and more importantly the absence of the three eldest children) would entirely frustrate the exercise of powers by the Court which Ms Zanda seeks to invoke.
i)I am satisfied that the Orders which Ms Zanda seeks to obtain would be thwarted, absent the restraints presently imposed upon Mr Zanda’s freedom of movement and such as to seek to coerce his compliance with any Order as might be made requiring that the three elder children be brought to the Commonwealth of Australia.
As already observed Mr Zanda has remained silent as regards any undertaking or any attitude towards compliance with any Orders as may be made by this Court which would require that the three elder children be brought to the Commonwealth of Australia. Thus I am satisfied that the only means the Court has to seek to obtain compliance with any such Order is the coercive and intrusive step urged by Ms Zanda being a restraint upon Mr Zanda’s freedom to depart the Commonwealth pending his compliance with any such Order (if I am satisfied that it is appropriate for it to be made).
I am also conscious that Mr Zanda is an Australian citizen. If his citizenship were solely Lebanese this might present a different scenario.
In summary and subject to satisfaction that Australia is an appropriate jurisdiction to deal with the totality of the Application made by Ms Zanda, I would propose to make and/or continue the restraint upon Mr Zanda’s departure from the Commonwealth of Australia.
As already indicated, Mr Zanda's Counsel has indicated on this occasion that the relief that had been sought by Mr Zanda’s former Counsel (on 19 May 2014), restraining Ms Zanda from departing the Commonwealth of Australia, is no longer pressed and, accordingly, that Order will be discharged by consent.
3. Is Australia an appropriate or “clearly inappropriate” forum to deal with the proceedings and the totality of the proceedings?
Mr Zanda, by his Response, opposes the Court’s exercise of jurisdiction with respect to any of the seven children including the four presently in Australia. Subject to opposing that jurisdiction Mr Zanda partially submits to jurisdiction on the conditional basis of seeking an Order for the delivery to Lebanon of the four youngest children. Clearly that relief is opposed by Ms Zanda.
In the alternative (albeit as the last of several alternatives) Mr Zanda proposes that in the event that the Court assumes any jurisdiction that he would seek an Order for all seven children to live with him in Lebanon.
In dealing with the issue of forum I am referred by Counsel for each of the parties to a number of authorities including:
a)Hubbard v Vosper [1972] 2 QB 84;
b)Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1;
c)Waugh & Waugh (2000) FLC 93-052
d)Jane & Murray [2013] FamCA 87;
e)Mullin & De Bry (2006) FLC 93-293;
f)MJ & JBD (2005) 32 Fam LR 617;
g)In the marriage of AB & AM El Alami (1987) 11 Fam LR 582;
h)B & B (Re Jurisdiction) (2003) 31 Fam LR 7;
i)EJK & TSL (2006) 35 Fam LR 559;
j)Karim v Khalid (2007) 38 Fam LR 300;
k)Minister of Immigration & Multicultural and Indigenous Affairs v B (2004) 219 CLR 365;
l)Randle & Randle [2011] FamCA 830;
m)Sampson v Hartnett (No.10) [2007] FamCA 1365
n)Director-General, Department of Community Services; Re Sophie [2008] NSWSC 1269; and
o)JJT & CTT [2004] FamCA 1104;
The last of the above authorities (JJT & CTT) is a first instance decision of Rose J. His Honour, under the heading “whether jurisdiction should be exercised or declined”, gives an erudite discussion of relevant law as promulgated by the High Court commencing with Oceanic Sun Line Special Shipping Company Inc. v Fay (1988) 165 CLR 197.
I incorporate from His Honour’s reasons paragraphs 34-43 thereof.
34. The test applied by the majority in the High Court of Australia in Oceanic Sun v Fay[1] is whether the local court is the “clearly inappropriate forum”.
35. The submissions on behalf of the wife did not refer to any of the judgments of the High Court of Australia. Rather, my attention was drawn to the judgment of Wallace J in Krisko v Krisko[2] in which having held that the Ontario Superior Court of Justice had jurisdiction, concluded that “the balance of convenience favoured the Court exercising its jurisdiction here” as opposed to a Dubai Court. The principles utilised for the purpose of determining the issue do not apply in Australia.
36. My attention was also drawn to the judgment in Meadows v Barned[3] in which the judgment turned upon the interpretation of various sub-sections of Section 22 of the Children’s Law Reform Act 1990 for the purpose of determining whether or not the Ontario Court of Justice was vested with jurisdiction. With respect, that judgment is irrelevant to the issue which I must now determine.
37. In Voth v Manildra Flour Mills Pty Ltd[4] the High Court confirmed the rejection by it in Oceanic Sun Lines Special Shipping Company Inc v Fay[5] of the forum non conveniens principle previously stated by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd[6]. As a result, the test that applies in the United Kingdom, and any other country of forum non conveniens principles which is “a clearly more appropriate forum” or “the natural forum” does not apply in Australia.
38. In Voth and subsequently in Henry v Henry, the High Court confirmed that the test propounded by the majority in Oceanic Sun “namely, that a stay should be granted if the local court is a clearly inappropriate forum”, which will be the case if continuation of the proceedings in that Court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or vexatious in the sense of “productive of serious and unjustified trouble and harassment”.[7]
39. In Voth, affirmed in Henry the judgment of Deane J in Oceanic Sun was followed in that “in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant “connecting factors” and “a legitimate personal or juridical advantage” ” provides valuable assistance.”[8]
40. Voth also followed the judgment of Deane J in Oceanic Sun in that “the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them”.[9]
41. It was also held in Henry following Voth that the “legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being where the case may be tried “suitably for the interests of all the parties and for the ends of justice”.[10]
42. Amongst the factors considered relevant by Lord Goff as referred to in the High Court judgments include whether the connection of the respondent with the forum of the local court “is a fragile one”; “that justice can be done in the other forum at substantially less inconvenience or expense”; that the other forum is one “with which the action had the most real and substantial connection”; the place and availability of witnesses with associated factors of convenience and expense; discovery where relevant and “the interests of all the parties and the ends of justice”.[11];
43. Recently the Full Court of this Court followed, as it was bound to do, the judgments of the High Court in that the “clearly inappropriate forum” is the test to be applied in relation to the issue of forum non conveniens.[12] It further held that “the best interests of the children” applies as a relevant consideration in determining whether or not jurisdiction should be exercised.[13]
[1] Ibid.
[2] (2000) O.J. Number 5660
[3] (1994) O.J. Number 80
[4] (1990 – 1991) 171 CLR 538
[5] Ibid.
[6] (1987) AC 460
[7] Henry v Henry (1996) FLC 92-685 at 83,120
[8] Henry, ibid. at 83,121
[9] Ibid. at 248
[10] Ibid. at 83,121
[11] (1987) AC at pp. 477-478; 482-483
[12] B v B (Re: Jurisdiction) (2003) FLC 93-136
[13] Ibid. at 78,265; 78,271
This helpful and erudite discussion by Rose J (a superb and gifted jurist) makes clear that submitted by each of the parties, namely, that what is required of me is to consider whether this jurisdiction is, in the facts and circumstances of the case as set out above, a “clearly inappropriate forum”.
A more detailed discussion has occurred in Karim v Khalid which both parties placed some significant reliance upon. In Karim v Khalid Coleman and May JJ undertook a clear discussion of relevant law under the heading “the proper approach to an application for the return of the child from Australia to a “non-Hague convention” country” and to that end I incorporate paragraphs 50-53 thereof:
50. An application for the return to a non-Hague Convention country of a child who is in Australia is a different type of application from, and subject to different principles to, an application for a stay of proceedings in an Australian court on the basis that that court is a clearly inappropriate forum. Similarly, an application for such a stay of Australian proceedings is in turn different from, and subject to somewhat different principles to, an application for an (anti-suit) injunction to prevent a party amenable to the jurisdiction of an Australian court from proceeding in a foreign court (as explained by the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; see also Dobson and Van Londen (2005) FLC 93-225; (2005) 33 Fam LR 525).
51. For present purposes the important distinction to be drawn is between an application to an Australian court for the return of a child who is in Australia to a non-Hague Convention country, and an application for a stay of proceedings in an Australian court on the basis that the Australian court is a clearly inappropriate forum. The principles which apply when an application is made for the return of a child who is in Australia to a non-Hague Convention country were explained by the High Court in the following passages from the joint judgments of Mason CJ, Toohey and McHugh JJ, of Brennan and Dawson JJ, and of Deane and Gauldron JJ in ZP v PS (supra), which despite their length, warrant consideration (emphasis added):
It is now established that Pt VII has invested the Family Court with a welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery but which is freed from the preliminary requirement of a wardship order [Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (Marion's Case) (1992) 175 CLR 218; P v. P (1994) 181 CLR 583]. In the exercise of the parens patriae jurisdiction, the Court of Chancery has always been guided by the principle that the welfare of the minor is the first and paramount consideration [Re R. (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 at p. 423]. …Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. …It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child [Re R. (1981) 2 FLR at pp. 426-427; Schwarz and Schwarz (1985) 10 Fam LR 235 at pp. 237-238; [1985] FLC 91-618 at 80,000]. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case [See Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538 at 556-557], are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court [In re L. (Minors) [1974] 1 WLR 250 at pp. 263-264; [1974] 1 All ER 913 at pp. 924-925; Mittelman and Mittelman (1984) 9 Fam LR 724, at pp. 726-727; [1984] FLC 91-578 at p. 79,667; cf. McKee [1951] AC at p. 364]. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction [In re L. [1974] 1 WLR at p. 264; [1974] 1 All ER at p. 925; Khamis and Khamis (1978) 34 FLR 150 at pp. 166-167; 4 Fam LR at p. 427-428; [1978] FLC 90- 486 at p. 77,521; Re R. (1981) 2 FLR at p. 425; Mittelman (1984) 9 Fam LR at pp. 726-727; [1984] FLC at p. 79,667; In re F. (Abduction: Custody Rights) [1991] Fam 25 at p. 31]. In In re F. (Abduction: Custody Rights) [[1991] Fam 25 at p. 32], Neill LJ said:
"The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child's welfare is the first and paramount consideration."
In the same case, Lord Donaldson MR formulated the approach which must be taken when an English court hears a submission that the welfare of a child within the jurisdiction requires that a foreign court should decide a question concerning the custody of the child. His Lordship said [[1991] Fam 25 at p. 31]:
"The welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child's best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made."
That approach also applies to applications in the Family Court when the question arises whether the Family Court or a foreign court should determine questions concerning the custody of a child within the jurisdiction. In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.
…
Prior to the decision of this Court in Voth v. Manildra Flour Mills Pty. Ltd. [(1990) 171 CLR 538], the principles upon which the Family Court acted in determining whether it should allow a foreign forum rather than itself determine a question of custody seem to have accorded with the foregoing account of the law [See El Alami and El Alami (1987) 11 Fam LR 852; [1988] FLC 91-930; Taylor and Taylor (1988) 92 FLR 172; 12 Fam LR 423; [1988] FLC 91-943]. But, after the decision in Voth, the Family Court adopted a different approach to submissions that a custody dispute should be determined in a foreign forum. In Voth, this Court decided that, when an issue arises as to whether a foreign forum rather than an Australian court is the forum most convenient to determine a dispute, the Australian court should hear the matter unless it is satisfied that it is a clearly inappropriate forum. In Scott and Scott [(1991) 104 FLR 320; 14 Fam LR 873; [1991] FLC 92-241], the Full Court of the Family Court regarded the authority of McKee [[1951] AC 352], which decided that the court must exercise an independent judgment in cases like the present, as "somewhat discredited" [Scott (1991) 104 FLR at pp. 323-324; 14 Fam LR at p. 876; [1991] FLC at p. 78,637] …
…
… [A]s we have already said, the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. In so far as Scott, Chong, Erdal, Gilmore, Van Rensburg and other cases hold that the forum non conveniens principle is applicable, they are in error and must be overruled. (Per Mason CJ, Toohey and McHugh JJ.)
Once the jurisdiction conferred by s 63 of the Family Law Act 1975 (Cth) (“the Act”) 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 a 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 a court of competent jurisdiction in the other country. …
…
The Family Court's attempt to meld the paramount consideration of the welfare of the child with the test of "clearly inappropriate forum" is misconceived. The latter test determines whether, in certain classes of case, a court should decline to exercise its jurisdiction; the former consideration governs the manner in which the Family Court must exercise the jurisdiction which has been conferred upon it by s.63. The test of "clearly inappropriate forum" is not an alternative test to the welfare of the child in determining the order to be made when the custody jurisdiction conferred by s.63 is to be exercised. Putting to one side the cases to which the Convention applies, s.64(1)(a) defines the paramount consideration. When a child is abducted from one country and brought to Australia and the abduction is not covered by the Convention, the abduction is relevant only by reason of the effect it has on the child's welfare. …
…And it may be entirely appropriate to order the speedy return of the child to the country from which he or she has been abducted without making as full an inquiry as the Court would ordinarily make in determining an application for permanent custody. Where it is for the welfare of the child that an order for speedy return is made, the Family Court is not primarily concerned with the question whether it is a clearly inappropriate forum to determine an application for permanent custody. The Family Court is the only court that can appropriately make an order for speedy return and it has no jurisdiction to remit the question of permanent custody for determination by a court in another country. The Family Court must therefore make the order that is appropriate in the unique circumstances of the case at the time when the proceedings are before it. In determining an application for speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child's permanent custody. But that is not to apply a "clearly inappropriate forum" criterion to the determination of the application. If the Family Court properly makes an order for the speedy return of a child abducted from another country, the Court is not declining to exercise its jurisdiction; it is exercising its jurisdiction by making an order dictated by the welfare of that child. (Per Brennan and Dawson JJ.)
In cases such as the present, the issue is not forum non conveniens. Rather, as Mason CJ, Toohey and McHugh JJ point out, the issue is whether the welfare of the child requires speedy repatriation to the country from which he or she was taken, with the courts of that country determining custody and other matters relating to the child's upbringing. We would add, however, that in determining what is in the interests of the welfare of the particular child, a court is entitled to take account of considerations of public policy reflecting and protecting the interests of all children. Among those considerations of public policy is the prima facie importance, in the interests of all children, of discouraging the taking of a child from his or her homeland and familial environment, in breach of the law of that homeland, for the purpose of obtaining standing or some forensic advantage in a dispute about custody, access or financial support in the courts of some other place. Such abduction of children across national boundaries, if encouraged by being treated as an accepted means of attracting the jurisdiction of, or obtaining some procedural advantage in, the desired forum, pose a threat to the security of any child subject to competing national claims or loyalties. (Per Deane and Gauldron JJ.)
52. At least prior to the decision of the Full Court in EJK & TSL (supra), there was some uncertainty in this jurisdiction as to whether the principles enunciated by the High Court in ZP v PS (supra) remain good law. This uncertainty appears to have arisen because of the significant amendments which were made to Part VII of the Act subsequent to the decision in ZP v PS, and also on account of the later High Court decision in Henry v Henry (1996) 185 CLR 571; 20 Fam LR 171.
53. In our view the decision in Henry v Henry (supra) should not be seen as altering the law as stated in ZP v PS (supra) once it is remembered that the issue in Henry was whether divorce proceedings in an Australian court should be stayed or dismissed in favour of foreign proceedings which were already on foot and thus the application of forum non-conveniens principles in the matrimonial context. There was no issue in Henry concerning the return of a child from Australia to a foreign country.
Mr Zanda submits through his Counsel, particularly as regards the three eldest children but, in reality with respect to all seven children, that an Australian Court is clearly an inappropriate forum. This is principally prefaced upon Mr Zanda’s submission that:
“the wife has clearly decided to embark upon a suruptitious, deceitful and secretive process to induce the husband to agree that the children (the four youngest children) leaving Lebanon so as to enable her to retract the jurisdiction of Australian Court’s.”
A number of factual matters are then set out with respect to and suggested to support that proposition.
It is submitted that the Court should be hesitant to exercise jurisdiction in respect of children physically outside of the jurisdiction.
Uncertainty is also raised as to the legal position concerning the status of the parties and the application of Lebanese law. Some attempt is made by Counsel for Ms Zanda to introduce material and I will deal with that separately, in rejecting it.
A number of additional authorities are then referred to specifically with respect to certain factual aspects of the proceedings and suggested analogy comprising; R & R Erdal (1992) 15 Fam LR 465, Y N & C Y Chong (1991) 15 Fam LR 629, A C & L Antoniou (1990) 14 Fam LR 90 and L & A Scott (1991) 14 Fam LR 873.
Ultimately Counsel for Mr Zanda submits that:
An Australian Court should exercise jurisdiction unless it is demonstrated that it is a clearly inappropriate forum which will be demonstrated by showing:
(a)The welfare of the child requires that the proceedings be determined elsewhere; or
(b)That it is oppressive or vexatious for the proceedings to continue in the Australian Court.
It is to be remembered that there is a significant contested factual dispute between these parties as to whether family violence has, at any time and in any form, occurred. Ms Zanda leads clear and specific evidence (to which I refer to, to acknowledge the evidence rather than to suggest that a finding of fact is made in accordance with it) regarding family violence. In this regard I am also conscious of the Family Violence Best Practice Principles incorporating and quoting as they do the Full Court’s decision in Amador & Amador (2009) 43 Fam LR 268.
Importantly the wife’s allegations of family violence directly connect with the basis upon which the children or several of them have, at different times, come to be present in Lebanon. In this regard it is particularly significant that:
a)The husband’s care of the children in Lebanon (jointly with the wife) has been for limited periods of time of approximately one year or, at best, approximately 18 months during the period from March 2007 to date.
b)Mr Zanda has never had the care of the children or any of them without Ms Zanda being present. That is to say that the children jointly and individually have never been in Mr Zanda’s sole care at any time.
c)Ms Zanda has, for significant periods, been present with and provided care for all of the children (such as have been born from time to time) in Lebanon as well as providing care for the children (whether solely, primarily or jointly with Mr Zanda) in Australia. For significant periods of time Ms Zanda has cared for the children in Lebanon in the absence of Mr Zanda.
d)Most importantly Ms Zanda alleges (although it is denied) that one or more of the children have remained in Lebanon at times since March 2007 as part of a deliberate and orchestrated plan by Mr Zanda (in consort with members of his extended family (noting Mr Zanda’s evidence that Lebanese cultural is patriarchal)) to ensure that Ms Zanda did not leave the marriage. That allegation is the subject of significant dispute and controversy. However, as interim and interlocutory proceedings I must take the evidence on its face conscious that it may ultimately be found proven or not proven.
e)Ms Zanda gives clear and specific evidence regarding the circumstances of the children’s presence in Lebanon including:
i)Upon returning to Australia in May 2007 and in early 2008 Mr Zanda said to Ms Zanda “You’re never going to get V again. She is for my parents now. Forget about her” (at paragraph 28).
ii)That prior to going to Lebanon for the first occasion in March 2007 that a conversation occurred between the parties wherein Ms Zanda said to Mr Zanda “you have to swear you won’t leave any of our kids overseas like your brother did with his children. You have to swear on the Koran” (at paragraph 24). This would appear to infer that Mr Zanda’s brother (presumably the husband of Ms Zanda’s sister) had engaged in a similar course of behaviour as Ms Zanda now alleges that Mr Zanda has.
iii)That during the time the parties were both in Lebanon commencing 16 August 2009 that members of Mr Zanda’s family withheld the children who had already been present in Lebanon prior to their arrival and did not permit them to commence residing with Mr and Ms Zanda and the other children for two days (paragraph 33).
iv)Ms Zanda alleges that shortly before returning to Australia in March 2014 that Mr Zanda said to her “the eldest children will never leave Lebanon again. I’m not going to let you have all your kids in Australia so you don’t run away from me again” (paragraph 58).
To the extent that it is thus common ground that the two eldest children have lived in Lebanon and have not returned to Australia since November 2008 this circumstance must be viewed within the context of the above (albeit controversial and disputed) evidence. Similarly, to the extent that the third eldest child, V has not been present in Australia since August 2009, the same circumstances apply.
A determination of the children’s best interests is separate and distinct to the children’s engagement and involvement in the proceedings and with each of their parents.
Both parents propose on a final basis that all seven children should live together. Accordingly, whilst the proceedings are on foot it would be beneficial for them to be present within the same jurisdiction and able to spend time with each other.
In light of the controversy surrounding the circumstances in which the three eldest children have come to be in Lebanon since 2008 and 2009 respectively and noting the care arrangements which have applied (wherein the children have been primarily cared for by Ms Zanda or by members of extended paternal family but never solely by Mr Zanda), I am satisfied that it would be difficult for Mr Zanda to satisfy me that the Federal Circuit Court of Australia is a clearly inappropriate forum and he has not done so.
I note that both parents are Australian citizens (notwithstanding Mr Zanda’s evidence that since prior to his obtaining citizenship that he had formed the belief (whether solely or jointly with Ms Zanda) that he would live permanently in Lebanon) and all seven children are born in Australia and are Australian citizens.
The three eldest children lived in Australia from their birth until March 2007 and thus, as regards T, has spent one half of his life (or thereabouts) living in Australia and one half living in Lebanon.
There is no evidence before me (notwithstanding the attempts of Counsel for Ms Zanda to introduce such material which I propose to reject and am satisfied I need not receive in any event) as to Lebanese law. Ms Zanda expresses some concerns regarding the treatment that she would receive within the Lebanese legal system having regard to that which she professes to be aware of through the experiences of others. However, I place no weight upon that allegation save Ms Zanda’s fear and anxiety with respect to the issue.
All seven children are Australian citizens who have, it would seem, received financial support from the Commonwealth of Australia throughout their lives (in the form of Family Tax Benefits paid to their parents and baby bonuses with respect to the younger children). They are matters which will ultimately be referred to relevant government agencies to scrutinise and investigate, to determine whether any misdoing is discernible. However, for present purposes it is to be noted that this circumstance of itself represents a connection of these children with the Commonwealth of Australia.
The determination of the children’s best interests can occur expeditiously before this Court. Hearing dates can be made available in October this year and, subject to the presentation of the three eldest children to the Commonwealth of Australia, arrangements can also be dealt with on an interim basis for both parents to spend some time with the children and the children with each other (subject to the parties presenting evidence which satisfies the Court as to the appropriateness of the arrangements that they may propose).
I also note the evidence of Mr Zanda that the three eldest children in Lebanon, whilst he alleges that they are “entrenched” in the Lebanese schooling system, are shortly to commence a three month period of holidays. Accordingly, the children will, for the period July-September, have no such schooling commitments. On the basis of when the hearing of these proceedings can occur, thus, I am satisfied that the children would not be prejudiced.
Each of these children has previously visited Australia and, indeed, has lived in Australia for various periods up to one half of their respective lives.
In short, I am satisfied that Australia is the appropriate forum to deal with issues with respect to the parenting of all seven children and, conversely, that Australia is not “a clearly inappropriate forum” for such determination.
4. Should the three elder children be delivered to the Commonwealth of Australia from Lebanon?
Clearly in light of the above the answer to this is yes.
I have some reservations as to the arrangements which will apply for the children upon their return. Mr Zanda has chosen to place no evidence before this Court as to his present circumstances including where he is residing or arrangements made for his care and upkeep. However, as already indicated, I am satisfied Mr Zanda is well positioned to support himself through his resources and/or income it being readily apparent from his own evidence that he has previously had no difficulty obtained well renumerated work.
The children’s best interests can be determined expeditiously and resources made available to hear and determine the matter quickly.
Subject to the children’s return I would propose to appoint an Independent Children’s Lawyer to represent all seven children. I do not take that step at this time even though both parties seek such an appointment and consent to it. The appointment of an Independent Children’s Lawyer may be unnecessary for the full and proper determination of the proceedings if all seven children are not present i.e. if Mr Zanda does not comply with Orders that I propose to make for the delivery of the three eldest children to the Commonwealth of Australia.
The parties and all seven children can be involved a Child Inclusive Child Dispute Conference 7 August 2014 which will allow, consistent with the International Convention on the Rights of the Child, the children’s voice to be heard in the proceedings. Such conference is a sufficient time away to enable the children’s return within the time frame I propose to Order (i.e. no later than 18 July 2014).
Hearing dates can be allocated to the proceedings, as was advised to the parties, in the week of 7 October 2014. That listing will not involve re-organisation of the Court’s business. The matter can be accommodated quickly.
5. Should I determine care arrangements for all seven children pending their return?
I am not satisfied that it would be appropriate for this to occur nor can it occur.
Orders have already been put in place with respect to the four youngest children which preclude Mr Zanda taking those children into his care. However, I was not prepared, on an ex parte basis, to deal with issues of parental responsibility and/or the children’s living arrangements. My position has not altered.
I could not possibly make any Order with respect to the living arrangements for the three eldest children as I have little if any evidence as to what arrangements would or could be made by either parent. Accordingly, I propose to adjourn any consideration of interim issues to a date in late July and so as to provide an opportunity to then appoint an Independent Children’s Lawyer (subject to the presentation to the Commonwealth of Australia of the three eldest children) and to allow determination of what interim Orders (if any) can or should be made with respect to all seven children.
Pending the listing on 29 July 2014, it will be necessary for the parties and each of them to prepare a Minute of Orders proposed by them with respect to interim parenting arrangements (to address parental responsibility, living arrangements and the children’s time and communication with the other parent) as well as to put appropriate Affidavit material before the Court that enables a determination to be made.
I propose to also Order the parties to attend Family Dispute Resolution such dispute resolution to occur, if at all possible, prior to the interim hearing date which I will Order.
6. Who should meet the costs of the children’s flights to Australia?
Whilst Ms Zanda has sought that Mr Zanda be responsible for meeting all costs with respect to the children’s delivery to the Commonwealth of Australia and has sought Orders which impose an obligation upon Mr Zanda alone to secure this end I propose, for the reasons set out hereafter, to make mutual Orders requiring both parties to cooperate and for Ms Zanda to meet the cost of compliance at least as regards airfares.
Mr Zanda suggests (although he has led no evidence to support his suggestion) that he is not in a position to fund airfares for the children. This is so notwithstanding that Mr Zanda seeks to be released from the present restraints so that he can immediately return to Lebanon and, presumably, he has the wherewithal to meet his own fare. However, to avoid any uncertainty and particularly to avoid potential unenforceability of any Order, I propose to seize upon the proposal of Ms Zanda that she, at least at first instance, meet the costs of the children’s airfares from Lebanon to Australia.
The children will need to be accompanied on that flight and it will be a matter for the parties to make arrangements to that end. I make clear that the obligation will be imposed upon the parties jointly and severally to ensure the children’s return and, accordingly, it will not be open to Mr Zanda to suggest that the absence of agreement in relation to the children’s delivery into the Commonwealth of Australia will alleviate his responsibilities.
Orders will be framed to provide that Ms Zanda advise Mr Zanda of her holding cleared funds sufficient to meet airfares for the children and for Mr Zanda to then nominate a date no later than 16 July 2014 when the children will travel to Australia as well as to advise the person whom he proposes to travel with the children. Such notice is to be provided by Mr Zanda within 48 hours of being advised by Ms Zanda that funds are available to meet airfares. In the event that Mr Zanda does not provide advice within 48 hours, Ms Zanda will then be at liberty to purchase tickets for the children and to make such arrangements as she may desire for the children to be accompanied by a member of her family.
7. Does a restraint upon Mr Zanda’s freedom to depart the Commonwealth of Australia contravene international convention obligations?
It is submitted by Counsel for Mr Zanda that interfering in Mr Zanda’s freedom of movement breaches the United Nations Convention on the Rights of the Child (which is incorporated in its entirely as objects of the Family Law Act 1975) as well as the Convention on the Elimination of all Forms of Racial Discrimination (domestically enacted as the Racial Discrimination Act 1975).
Article 9 of the International Convention on the Rights of the Child provides:
State parties shall ensure that a child shall not be separated from his or her parents against their will except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interest of the child.
I note that the decision of Cronin J quoted above has dealt specifically with the interplay between International Conventions (whether enacted into domestic law or not) and the Court’s obligation under the Family Law Act 1975 to treat the child’s best interests as the paramount consideration.
I note that no law of the Commonwealth has effected the separation between the children or any of them and either parent. The children are separated from their parents as a consequence of their parent’s own actions. Mr Zanda (and Ms Zanda) left the three eldest children in Lebanon when they travelled to Australia. There is controversy between the parties as to the circumstances by which this occurred and Ms Zanda makes clear that it was her desire that all seven children would travel.
To the extent that the Court represents an arm of executive government it might be suggested that a restraint imposed by this Court which precludes Mr Zanda departing the Commonwealth of Australia and travelling to Lebanon and then taking up residence with the three eldest children may fall within the ambit of article 9 of the International Convention on the Rights of the Child. I reject that assertion and further and to the extent that I may be in error in that regard I am satisfied that the determination of the children’s arrangements in accordance with their best interests (as the International Convention also requires) and appropriate orders are thus made by the Court in aid of jurisdiction do not, subject to affording due process to both parties as has now occurred, infringe upon or fall foul of the Convention. To that end the interference is necessary to allow the address of the children’s best interests.
The Orders that I propose to make will, in fact, ensure that the three eldest children are not separated from either parent or their siblings as those children will be delivered into the Commonwealth of Australia where both parents (and the four youngest children) are presently.
The position advanced by Mr Zanda would ensure (if he were to return to Lebanon and then reside with the three eldest children while Ms Zanda remained in Australia with the four youngest children) that:
a)The three eldest children were separated from Ms Zanda;
b)The four youngest children were separated from Mr Zanda; and
c)The seven children were separated from each other.
Further by reference to the High Court’s decision in the Attorney-General (Vic); Ex rel Black v Commonwealth of Australia (DOGS Case) (1981) 146 CLR 559, I am satisfied that that one would only infringe upon Article 9 if the Order restraining Mr Zanda’s right of freedom of movement was purposive rather than effective.
As regards the Convention on the Elimination of all Forms of Racial Discrimination it is suggested that a restraint upon Mr Zanda’s freedom of movement would infringe Articles 5 and 6 of the Convention.
Article 5 provides in part;
…state parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone without distinction as to race, colour or national or ethnic origin to equality before the law notably in the enjoyment of the following rights…(dii) the right to leave any country including one’s own and to return to one’s country.
The restraint that is made is, again, in aid of this Court’s jurisdiction in determining the children’s best interests. To that end and again by reference to the High Court’s decision in the DOGS case, I am satisfied that no breach of that article could be validly suggested or maintained.
The restraint upon Mr Zanda’s freedom of movement is not purposive or based upon a distinction drawn against him as to his race, colour or national or ethnic origin or made with any reference or regard to same.
Article 6 does not take the matter any further.
8. Does the Court have jurisdiction to make orders with respect to the three eldest children who are not within the Commonwealth of Australia?
As already indicated above I am satisfied that this is appropriately dealt with by section 69E of the Family Law Act 1975 and the discussion of Cronin J referred to above.
The children are Australian citizens as are both of their parents (albeit one of them voluntarily and one not so) and both parents are present in Australia as are the four youngest children.
I am satisfied that the discussion of Cronin J referred to above as well as the decision of Soares & Soares (1989) FLC 92-024 support this finding of jurisdiction.
9. Should I or need I accept material regarding the Lebanese legal system?
The wife has sought to introduce into evidence a document described as a “Freedom House Report that explains Family Law in Lebanon on pages 12-15”. That material (and a significant volume more) is annexure C to the wife’s Affidavit.
I made clear to the parties during the course of submissions that the material had not been read by me and that I would need to be persuaded that it was necessary for me to do so.
I note that Mr Zanda has not sought to introduce any evidence with respect to Lebanese law and, in fact, has made submissions through his Counsel that there is no evidence before the Court regarding the Lebanese legal system.
I am not satisfied that I require such evidence.
On the basis that the material that is simply annexed to Ms Zanda’s material without further qualification or attempt to substantiate the validity and reliability of the document attached (which I do not seek to doubt or criticise) it would not, on its face, appear admissible.
I am referred by Counsel for Ms Zanda to a decision of the Refugee Review Tribunal in 1107145 [2001] RRTA 872. Within that decision the material which is sought to be relied upon by Ms Zanda was accepted by the tribunal. I am not bound by decisions of the Tribunal (although I respect their decisions). Further, the context of the decision and the basis for the introduction of material is vastly different.
As I have indicated I am not satisfied that I need to have the material before me to be able to proceed with the issues which must be addressed and particularly the issue as to whether this Court is a “clearly inappropriate forum”. Accordingly I reject the tender of that material (if it might be described as tendered).
10. Should a referral of the papers in these reasons be made to government agencies?
As indicated above I had made clear to Counsel for each of the parties that I required submissions from them as to why such a referral should not be made so as to bring to the attention of those authorities matters which are of some concern and potentially other than consistent with the parties’ obligations under Australian law. No submissions were made.
I note the evidence outlined above (principally that of Ms Zanda but also that of Mr Zanda) regarding the receipt by these parties of Family Tax Benefit payments for their children notwithstanding that, on Mr Zanda’s evidence:
a)The parties’ had determined to live permanently outside of the Commonwealth of Australia (with some or all of their children) as and from 2006; and
b)Two of the children have lived permanently outside of the Commonwealth of Australia (and largely in the care of people other than their parents or either of them) since 2008 and a third since 2009.
Ms Zanda has given evidence as to:
a)The receipt of Family Tax benefits (she has annexed a statement for the 2012/13 financial year suggesting that the parties had received or were entitled to receive a sum of $25265.74 for that financial year);
b)Ms Zanda gives evidence that her return from Lebanon was, on several occasions, at the behest of Mr Zanda and for the sole purpose of re-applying for or providing information to the Department of Human Service (Centrelink) to enable social security benefits to continue; and
c)On at least two occasions Ms Zanda (or the parties) returned to Australia for a brief period purely to allow the child then carried by Ms Zanda to be born in Australia and to then receive the baby bonus then operating.
Coincidentally the material annexed by Ms Zanda to her material suggests that the youngest of the children Z is not or was not at that time immunised and as a consequence the parents were not entitled to receive Family Tax payment. It is to be noted that Z has undertaken significant travel to an area of the world where diseases to which such immunisations relate continue to be a real and present issue.
Section 500 of the Social Security Act 1991 (Cth) provides the qualification for receipt of parenting payment. It provides that a person is qualified for parenting payment if:
a)The person has at least one child;
b)The person is an Australian resident; and
c)The person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident.
Australian resident is defined in section 7 of the Social Security Act 1991 as being a person who resides in Australia and is an Australian citizen, holder of a permanent visa or special category visa.
The above requirements would not appear to have been met with some or all of the children.
The Court is required to be vigilant with respect to compliance with Australian law and to act in aid of that law. It is not the Court’s role to police qualification for or receipt of benefits, that is a matter for the appropriate government agency, in this case the Department of Human Services.
In light of the issues which are raised (as to which I make no concluded finding nor need I) I propose to refer these reasons and the material filed by the parties to the Department of Human Services.
With respect to issues of citizenship it is to be noted that section 21 of the Australian Citizenship Act 2007 provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)Is aged 18 or over at the time that the person made the application; and
(b)Is a permanent resident:
(i)At the time the person made the application; and
(ii)At the time of the minister’s decision of the application; and
(c)Satisfies the general residence requirement; (section 22) and...
(g) is likely to reside or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
The “general residence” requirement set out in section 22 would appear to be partially met in that Mr Zanda had resided in Australia from the time of his entry in 2001 until March 2007. It is unclear whether for that period or any portion of it Mr Zanda was a “permanent resident”. It is his expressed intent as to future residence that would appear lacking.
The law which applied in 2006 was the Australian Citizenship Act 1948. Section 13 of that legislation did not contain an equivalent requirement of “likely to reside or continue to reside in Australia or to maintain a close and continuing association with Australia”.
It is troubling and concerning that Mr Zanda’s evidence is that his citizenship was applied for or at least granted in 2006 at the very time when, consistent with his evidence, he had formed the desire and intention to live permanently in Lebanon and to return to Australia from time to time purely and solely for the purpose of earning a greater income than was available to him in Lebanon and returning the funds to Lebanon.
I again make no judgement with respect to the above other than there would appear to be, at least potentially, some anomaly as regards the eligibility requirements for citizenship at the time the application was made and Mr Zanda’s evidence.
In the absence of submissions as to why such referral should not be made I accordingly propose to refer these reasons and the material of the parties to the Department of Immigration and Citizenship.
From here
As would be apparent from the above I propose to list these proceedings for trial. The parties have suggested the matter would require three and possibly four days of hearing. I propose to list the matter for three days of hearing. If the matter requires a fourth day and as the matter will be listed on a Tuesday to Thursday it thus can continue on the fourth day if necessary.
I propose to appoint an Independent Children’s Lawyer upon the presentation to the Commonwealth of Australia of the three eldest children and in the meantime:
a)Direct the delivery of the three eldest children to the Commonwealth of Australia no later than 18 July 2014;
b)Adjourn the proceedings for interim hearing to 29 July 2014 at 9.30am;
c)Require the parties to file and serve a Minute of Orders proposed by them (with respect to any interim relief which they may seek) together with Affidavit material relied upon by them in prosecuting such application, same to be filed and served no later than close of business 18 July 2014.
d)If at all possible for the parties to attend Family Dispute Resolution auspice by the Legal Aid Commission prior to the interim hearing date.
In addition I propose to continue, until such time as the three eldest children are delivered into the Commonwealth of Australia, the restraint upon Mr Zanda’s departure from the Commonwealth of Australia. Should Mr Zanda desire to leave the Commonwealth then immediately upon the children’s return he will be at liberty to do so as their return will be, by and of itself, the condition precedent upon which the restraint will be discharged without the need for further application or process.
Accordingly I make Orders as follows.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 2 July 2014
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