Sameer & Gamil

[2024] FedCFamC1F 54

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sameer & Gamil [2024] FedCFamC1F 54

File number:

SYC 7224 of 2018

Judgment of:

BRASCH J

Date of judgment:

12 February 2024

Catchwords:

FAMILY LAW – PARENTING – Where parties entered into final consent orders for the mother to relocate to Country B with the three children on giving 90 days’ notice – Where notice given – Where father held over one child and mother relocated with the other two children – Whether Australia is the habitual residence of the two children in Country B – Whether s 111CD(1)(e) engaged – Whether father can be heard per s 69F despite failing to comply with orders – Whether material change of circumstance per Rice & Asplund (1979) FLC 90-725 – No jurisdiction with respect to two children – Father will be heard – Where, irrespective of the parents’ actions and inactions, separation of siblings is a material change of circumstance for them.

Legislation:

Family Law Act 1975 (Cth) Pt VII 111B ss 64D, 65M, 65N, 69E, 69F, 69ZN, 111CD

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996

Cases cited:

Ahmad & Hadi [2020] FamCA 1041

Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Dautry & Wemple (2018) 341 FLR 105; [2018] FamCAFC 237

Defrey & Radnor [2021] FamCAFC 67

Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23

Langmeil & Grange [2013] FamCAFC 31

LK v Director-General, Department of Community Services (2009) 237 CLR; [2009] HCA 9

McEnerney & McEnerney (1980) FLC 90-866; [1980] FamCA 43

Re LC (Children) [2014] AC 1038

Reger & Hanney [2023] FedCFamC1F 805

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701; [2016] FamCAFC 57

Division:

Division 1 First Instance

Number of paragraphs:

78

Date of hearing:

2 February 2024

Place:

Brisbane (by video conference)

Counsel for the Applicant:

Ms Shea

Solicitor for the Applicant:

MCW Lawyers

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Swan Lawyers

ORDERS

SYC 7224 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GAMIL

Applicant

AND:

MS SAMEER

Respondent

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	12 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The father’s Initiating Application filed 11 January 2024 is dismissed in so far as it concerns the children Y (born 2010) and Z (born 2013).

BY CONSENT, THE COURT FURTHER ORDERS THAT:

Private or court provided Child Impact Report

2.No later than 4.00 pm today, the mother, through her legal representatives, is to write to Dr C, copied to the father’s legal representative, to enquire of his:

(a)Availability to undertake a Child Impact Report;

(b)Cost of doing same;

(c)Estimated or usual turnaround time to produce Reports; and

(d)Request his response be provided to both parties and include a copy of his CV.

3.No later than 4.00 pm on Friday 23 February 2024, the parties’ legal representatives are to provide either:

(a)A Minute of Order appointing a private single expert report writer to produce a Child Impact Report and requesting the court provided Child Impact Report orders (below) be vacated; or

(b)Advice that a private single expert could not be agreed upon, in which case, the following orders for a court provided Child Impact Report remain in force.

4.Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.

5.The parties will attend Part 1 of the event by video, using Microsoft Teams, on 11 April 2024, with:

(a)the applicant to attend at 9.00 am (Sydney time); and

(b)the respondent to attend at 10.30 am (Sydney time).

Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.

6.The father and child, X (born 2010), are to attend Part 2 of the event in person at the Sydney registry at 97-99 Goulburn Street Sydney on the morning of 15 April 2024. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.

7.The mother is permitted to attend the Part 2 event by Teams.

8.Further to Order 7 herein, the mother is directed to facilitate the attendance of the children Y (born 2010) and Z (born 2013) on the Court Child Expert at Part 2 of the event by Teams.

9.No later than 4.00 pm on 19 February 2024, the parties must provide their contact telephone numbers and email addresses to …@....

10.Pursuant to Order 4 herein, the Court Child Expert shall provide a written Child Impact Report to the Court and the report shall deal with the following matters:

(a)Any agreement reached between the parties;

(b)Identification of key issues requiring resolution;

(c)Any views expressed by the child/ren and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(d)The impact of the issues/dispute before the Court on the child; and

(e)Any other matters that the Court Child Expert considers important to the welfare or best interests of the child.

11.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.

12.The Court Child Expert shall be at liberty to inspect any material filed by the parties.

Independent children’s Lawyer

13.Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer is appointed for the child X (born 2010).

14.Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation of the child and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.

15.The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid New South Wales of this order forthwith.

16.Each party make available to the Independent Children’s Lawyer within seven (7) days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

17.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter.

Re-listing

18.The ICL is granted liberty to apply to relist the proceedings on 48 hours written notice by email to chambers (…@...), and to the other parties.

THE COURT FURTHER ORDERS THAT:

Filing of updated material

19.Within 14 days of the receipt of the Child Impact Report, the father is at liberty (but is not required) to file and serve an Amended Initiating Application and affidavit with respect to the child X (born 2010).

20.Within seven (7) days thereafter, the mother is at liberty (but is not required) to file an Amended Response and affidavit with respect to the child X.

21.The matter be listed on a date to be fixed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

BRASCH J:

1. In an effort to give the parties a decision as expeditiously as possible, these are my oral reasons.  If necessary, I will correct the transcript for grammatical error and amend to make the spoken word more amenable to reading.

2. The father, Mr Gamil, and the mother, Ms Sameer, have three children: X and Y born 2010; and, Z born 2013.  I was told at the hearing, without demur, that the children are both Australian and Country B citizens.  The children were, it seems, born in Australia. 

3. The mother was born in City D, Country B in 1976.  The father was born in 1972 in City E, Country B.  The material is not clear on their citizenry. Doing the best I can, the mother says she is an Australian citizen and the father is a “returning resident” to Country B.  The father says he is ordinarily a resident and domiciled in Australia.  The father does not tick the Australian Citizen box for either parent in his Initiating Application.   

4. The parents commenced cohabitation in Country B in 2000 on the father’s case, or 2001 on the mother’s case.  Nothing turns on these differing dates.  The parents married in 2002 in Country B.  It is not clear to me when the parties moved to Australia; the mother says at paragraph 141 of her affidavit, “[w]hen we first visited [Country B] in 2011, after we moved to Australia”, so that seems they have lived in Australia for some time.

5. The parties separated in November 2016 on the father’s case, or June 2017 on the mother’s case. Again, nothing turns on these dates.

6. In 2018, the court made detailed final consent orders (“the final consent orders”), including, relevantly:

   32. The mother is hereby permitted to relocate the children’s residence to [Country B] upon the provision of no less than 90 days’ notice in writing to the father of her intention to relocate.

   33. The parties shall share equally in the following costs of the mother’s relocation with the children to [Country B]:

   33.1     Flights to [Country B] for the children;

   33.2     Removalists;

   33.3     Storage (if required);

   33.4     Travel insurance for the children;

   33.5     Medical insurance for the children on arrival and

   33.6 Freight, shipping and insurance of the mother’s and children’s belongings to [Country B].

   34.      Upon the children’s relocation to [Country B]:

   34.1     The children will live with the mother.

   34.2 The children will spend time with the father as agreed between the parties and in absence of agreement, as follows:

   34.2.1 For the whole period of the term holidays subject to the father providing to the mother confirmation at least 30 days’ notice of his availability to have the children for the duration of the term holidays;

   34.2.2 For one continuous month of the long summer holidays (defined as the school holiday period generally commencing in July for a period of 2 months) commencing on such a date as agreed or in the absence of agreement, on the first day of the holidays and concluding one calendar month later.

   34.2.3 In the event the father is in [Country B] during the school term, such time in accordance with Order 16.2.1 and 16.2.2

   34.3 The father may elect to spend time with the children during the school holidays pursuant to Order 34.2.1 and 34.2.2 in Australia provided that:

   34.3.1 The father or mother accompany the children on such flights;

   34.3.2 The father meets the cost of the children’s return airfares from [Country B] to Australia and up until the children are able to travel unaccompanied pursuant to Order 34.3 .3,

   34.3.3 The father meet the cost of the mother's return airfare from [Country B] to Australia when she is required to accompany the children on the flight and the cost of the mother’s accommodation in Australia at a one bedroom serviced apartment […] or its equivalent for the duration that the children are in Australia to spend time with the father;

   34.3.4 The father shall provide to the mother no later than 14 days prior to their intended departure date with copies of the children’s (and where relevant the mother’s) airfare itinerary; and

   34.3.5 Each child shall not travel unaccompanied until he is at least 13 years of age.

7. Notations C and D give context to the orders. The orders have not been the subject of varying court orders nor was there any suggestion that a later parenting plan had the effect of varying the final consent orders per s 64D of the Family Law Act 1975 (Cth) (“the Act”).

8. Consequent upon the making of the final consent orders, the mother gave the father several notices of her intention to relocate to Country B with the children, including November 2022, January 2023 and October 2023.  Those relocations did not proceed after correspondence between the parties, but the mother made it clear she still intended to move just “not at this juncture”.

9. Despite the mother plainly putting the court approved relocation on the parental agenda, at no point did the father move the court to vary the final consent orders and/or apply for an Airport Watch List.  It is clear from the father’s Costs Notice that he first engaged his legal representatives in 2022.  In December 2022 the father, through lawyers, threatened legal proceedings when the mother gave notice of relocating in November 2022.  It can hardly be said the father was ignorant of his options.

10. Critically for the dispute now before me, on 4 October 2023 the mother advised the father by email (“the 4 October email”):

    Since returning from our visit to [Country B], we have had disagreements and we have not managed to bridge the gaps that are now deeper. This affects our children and our relationships. I 've been looking for some time to sit down and reach an agreement for our children so we can relocate to [Country B]. I see the children as our top priority and I want to give them a balance of loving family life and support, despite all the difficulties they experience because of the issues in our relationship. They'll be around people they can trust and I can trust them too. With traditional values and holidays in their family and nieces and supportive and lovely friends. You have family and friends who can help you and support you. The agreement we signed allows to demand for the return to [Country B] and I would now like to do so. I ask you to consider this request and whether you shall return to [Country B] with us. Consider things, I think it will do good for you too. I will need you to purchase our flight tickets to [Country B] one way. Thanks, [Ms Sameer]

    (Emphasis added)

    (Father’s affidavit filed 11 January 2024, paragraph 23)

11. The mother attached an itinerary to her notice. Although unnecessary, the mother gave further confirmation of her intention to relocate on 18 October 2023 and 6 December 2023. 

12. After further emails from the mother to the father concerning his lack of response to the 4 October 2023 email, the father replied on 16 December 2023: 

    Hi [Ms Sameer],

    I do not understand why you keep raising this issue as if it is up for discussion. Less than a year ago we reached an agreement that we would make a yearly trip to [Country B], I have also gone to every joint meeting with the coach you suggested so we can have a better relationship as divorced parents.

    During those meetings I've tried to explain my position, but you've consistently refused to accept any world view that deviates even slightly from yours and I've grown tired of repeating myself when all my concerns fall on deaf ears.

    The only reason you want me to go back to [Country B], is so I can convince them to go along with your ill thought out plans. You well know that if given a choice the Children would prefer to continue living in Australia and so do I.

    This is not the first time you've been threatened to go back to [Country B] and take kids, but I find it extremely concerning that you even consider taking the children to [Country B] during [civil unrest].

    I ask that you cease with this posturing and work with me to make our children's' lives better here in their home.

    Regards,

    [Mr Gamil]

    (Annexure C to the father’s affidavit filed 11 January 2024, p.39)

13. There was no suggestion that the apparent agreement referred to by the father was reduced to a parenting plan. Of the apparent agreement, the mother said she had her solicitors write to the father’s solicitors suggesting they engage a Country B parenting coach and that they would visit Country B annually, but the father’s solicitor only responded to the suggestion about the parenting coach (Mother’s affidavit filed 1 February 2024, paragraph 47).  I do not need to resolve this dispute because it is clear that there is no subsequent parenting plan.

14. Further, the father’s email fails to engage with the reality that the mother has the benefit of an order (with his consent and the court’s imprimatur) allowing her to relocate to Country B with the children on 90 days’ notice.

15. Consistent with Order 33, on 18 October 2023 the mother emailed the father reminding him to pay half the airfares.  He did not.

16. On 24 December 2023 the mother invited the father to a mediation, with an intake to occur on 4 January 2024.  The father cancelled the intake and sought to reschedule it to a later date.

17. In January 2024 X self-placed with the father when all three children should have been with the mother (Father’s affidavit filed 11 January 2024, paragraphs 32, 34 and 111).  There is no evidence before me that the father took any steps to send the child back to the mother.

18. Despite consent orders allowing the relocation to Country B, the father told Y in a phone call (who remained in the mother’s care), “[d]on’t get on any planes” (Father’s affidavit filed 11 January 2024, paragraph 111). 

19. On the father’s case, the children should have been with the mother in January 2024.  The mother agrees that in January 2024, X should have been with her.  Thereafter, the mother did not ask the father to return the child.  I infer from her material, and accept given the tenor of the father’s emails, that she considered such requests to be futile.  That said, she also did not approach the court to recover the child to her, but the timing was against her doing so – X self‑placed in January 2024 and, upon receiving cheaper flight options at short notice, she left Australia with the other two children a few days later 2024.  The mother has since brought a recovery order for X to enforce the 2018 orders.

20. The father now complains the mother left on an earlier date when she had said a later date in January 2024.  I am satisfied nothing turns on this because the father took no steps at any stage from 2018, and particularly when the mother had given earlier notices of relocation, to apply to vary the orders or enter into a parenting plan.  Further, the order does not require the mother to set a specific date of travel. Rather, she is to give 90 days’ notice, which she did on 4 October 2023, and that is more than 90 days’ notice for both the January 2024 travel dates.

21. When the mother and two children left for Country B, X stayed with the father.  The children remain separated.

22. After the mother arrived in Country B with the two children, the father filed an Initiating Application on 11 January 2024 and sought an urgent hearing.  I pause to observe that the mother advised the father of their arrival a few days earlier. The matter came before me on 12 January 2024.  The father was represented and the mother’s former solicitor attended as a courtesy to the court.   I set the matter down for hearing on the afternoon on 2 February 2024 and made directions for the mother to file material.   I made the following Notation:

    B.The next hearing of the matter will be to either consider the Rice and Asplund threshold issue or consider what steps ought be taken in the event the mother does not engage in the litigation process.

1. The mother engaged.

2. By the time of the February 2024 hearing, the father sought orders to the effect that: a declaration be made that the children habitually reside in Australia; a declaration the Court has jurisdiction; the consent orders be suspended; the children live with him in Australia; he have sole parental responsibility; and, orders to facilitate Y’s and Z’s return to Australia.

3. The mother sought enforcement orders to recover X to her in Country B and the father’s application be otherwise dismissed.

   THE PRELIMINARY ISSUES

4. When the matter came before me on 2 February 2024, three preliminary matters required resolution:

   ·Habitual residence per s 111CD(1)(e) of the Act;

   ·Hearing a person in breach of an order per s 69F of the Act; and

   ·Whether there is a material change of circumstance, that is, the “rule” in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).

5. The parties relied upon the material set out in their Case Outlines.  It became unnecessary for the mother [through Dr Barnett SC)] to tender the bundle of documents referred to in her Outline and I acknowledge [the father’s Counsel] Ms Shea’s very appropriate approach to the issue of Country B. 

   SECTION 111CD

6. Section 69E of the Act provides:

   (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.

   Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

7. The parties accept their matter falls within s 69E. I agree. The father (and one child) was present in Australia when the proceedings were commenced. On the face of it, the court has jurisdiction to hear the parenting proceedings.

8. However, that exercise of jurisdiction is conditioned, qualified, or regulated by s 111CD of the Act. That is clear from s 111B which mandates Division 4 has effect “despite the rest of the Act”.

9. Accordingly, s 111CD relevantly provides:

   (1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:

   …

   (e)       a child who is present in a non‑Convention country, if:

   (i)        the child is habitually resident in Australia; and

   (ii)       any of paragraphs 69E(1)(b) to (e) applies to the child; or

   …

   (Emphasis added)

10. Plainly, s 111CD(1)(e)(i) and (ii) are conjunctive; both conditions must be satisfied.  The convention referred to is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the 1996 Convention”).

11. It is not in dispute that the father is seeking a Commonwealth personal protection measure, being parenting orders dealing with parental responsibility and where and with whom the children will live. It is also agreed that Country B is a non-Convention country for the purposes of s 111CD(1)(e).

12. It is common ground that X is habitually resident in Australia. The s 111CD question is whether Y and Z (“the two children”) are. Importantly, s 111CD(1)(e) does not ask if the two children are habitually resident in Country B; the focus is on habitual residence in Australia.

13. In Ahmad & Hadi [2020] FamCA 1041 (“Ahmad”), Justice Tree determined that, “the proper construction of s 111CD requires habitual residence to be determined at the date of the relevant hearing”. Respectfully, I agree with this and for the reasons given by his Honour at [37]. That means I will turn my mind to whether the two children’s habitual residence was Australia as at Friday 2 February 2024.

14. I acknowledge that unlike Ahmad (and Reger & Hanney [2023] FedCFamC1F 805 (“Reger”) to which I was referred by the father’s [counsel], there are no proceedings in Country B. But I do not read s 111CD nor the authorities that this is required; I am fortified in reaching this conclusion given no submission was made that overseas proceedings are a necessary precursor.

15. Rather, the parties entered into a final consent order, and made by the court, that on 90 days’ notice the mother could relocate with the children to Country B.  The order goes on to set out what the parties will do in Country B with respect to parenting orders.  They are detailed provisions.

16. The parties rightly focused their attention on the question of the two children’s habitual residence.

    Habitual residence

17. In LK v Director-General, Department of Community Services (2009) 237 CLR (“LK”), the High Court (per French CJ, Gummow, Hayne, Heydon & Kiefel JJ) said of the term habitual residence:

    22. ... the search must be for where a person resides and whether residence at that place can be described as habitual.

    23. ...First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.

    ...

    27. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.

18. The High Court also made plain that while an examination of intentions will usually be relevant:

    28. ... unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

    29. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous...

    ...

    34. ... it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

    (Emphasis added)

19. At [35] the High Court eschewed the idea of identifying a set list of criteria to identify or assess a person’s habitual residence.  

20. At [45] the High Court spoke of looking at the matter from “the child’s perspective”.  In the subsequent decision of the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”), the Full Curt referred to LK and observed:

    37.It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”. 

    The father’s case

21. In summary the father submitted:

    (a)The children have lived 50-50 since the final consent orders;

    (b)Intention is not determinative;

    (c)It is clear from the final consent order that the parties had a shared intention about relocation, but by 2024, they no longer shared that intent;

    (d)The father made it very clear to the mother that he did not agree with the relocation;

    (e)The intention of the 2018 order is for all three children to relocate but only two have;

    (f)The mother chose to leave with two children and did not seek to recover X to her prior to her departure;

    (g)Through the father allowing X to stay with him and through the mother’s lack of action recovering the child to her, both parents have created the separation of siblings;

    (h)The children were born in Australia, lived in Australia and have only been in Country B for four weeks on this departure; and

    (i)The mother’s and children’s “reality” in Country B is that the mother is not renting her own accommodation in Country B, has not enrolled the children in school or engaged with health professionals for the children and contemplates the father’s application may see her return by court order;

    therefore the children have not lost their habitual residence in Australia. 

22. I pause to observe a curiosity in the father’s argument, being the complaint that only two not all three children have relocated; that was in part his doing.  I was also taken to recent the decision of Reger, to which I have referred, but the factual circumstances of that matter are quite different to the current.  For example, this matter has a final consent order permitting relocation whereas Reger concerned habitual residence but also duelling family law proceedings in Australia and the United States of America.

    The mother’s case

23. In summary the mother submitted:

    (a)The question of habitual residence was a factual one where I would look at the circumstances of the children and intent of the parents, albeit intention is not determinative;

    (b)The orders for relocation are very clear and consented to by both parties;

    (c)The mother gave all that was required – 90 days’ notice;

    (d)The orders have not been complied with by the father;

    (e)Upon relocation, the two children lost or abandoned their habitual residence in Australia by the parents contemplating exactly that when entering into the final consent orders;

    (f)Similarly, the practical outcome of the final consent orders is that when the children arrived in Country B, their habitual residence in Australia was abandoned;

    (g)Notation C to the order gives context and content to the parties’ intentions.  That Notation is to the effect that the parties’ family supports are in Country B, the children identify with their Country B background and it was agreed the children’s best interests would be best served by relocating to Country B at an appropriate date. The Notation also records the father’s intention to relocate to Country B;

    (h)A “fair reading” of the mother’s email (Annexure C to the father’s affidavit filed 11 January 2024, p.37) makes it plain that she did not and had not resiled from her intention to relocate; and

    (i)Habitual residence can be lost very quickly as a consequence of the final consent orders being acted upon (Re LC (Children) [2014] AC 1038 (“Re LC”) per Lady Hale at [63]).

    Discussion

24. I accept the children were born in Australia and lived their lives here.  I accept they must have friends and familiar schooling and living environments in Australia. 

25. However, habitual residence is something that can be quickly lost (Re LC per Lady Hale at [63]). It is “the general rule” that neither parent can unilaterally change that place of habitual residence. However, as foreshadowed by LK at [34] (extracted above), there is a final consent order in this matter which permits relocation.  Further, despite the mother’s many indications to the father she would exercise the relocation orders, the father took no steps whatsoever to apply to vary the final consent order on the earlier dates I have identified, and, nor did he apply for an Airport Watch List Order.  Consequently, the 2018 final consent order is in place and remains in force.  Orders would be rendered meaningless if one party could unilaterally decide they have no force simply because they do not agree with them anymore. 

26. In this case, a consequence of the parties’ meeting of minds on the making of the final consent orders was that the children’s habitual residence in Australia would be lost or abandoned upon the mother’s relocation to Country B pursuant to the orders.  That occurred when the mother left Australia and landed in Country B with two of the children in January 2024.  

27. I do not consider much, if anything, turns on the father’s submissions about the mother’s and children’s circumstances in Country B where he sought to portray a position of instability.  Instead, the mother’s evidence, which I accept because she has the hands on knowledge, is that she has: discussed the children’s enrolment with the school principal and organised their enrolment; inspected apartments with contracts on two; engaged two tutors for the children; made appointments to see specialists to support the children’s medical conditions; completed all the legal requirements with the immigration authority; and engaged with a Country B lawyer “to finalise all loose ends”. I also accept she has applied for transportation cards and mobile telephones “for everyone” and set up bank accounts “for the children and me in [Country B]”.

28. The mother has also taken steps to register the Australian orders in Country B. Soon after arriving in Country B, she gave notice to the Australian real estate agent to terminate the lease on her Australian rental property, and, has had her household contents shipped to her.

29. The matters set out in the previous two paragraphs are all the kinds of things a person would do when moving to a new location. But I must keep in mind s 111CD focuses on the children’s habitual residence in Australia.

30. That the mother has not concluded her housing choice to await the outcome of this hearing is prudent. There was no suggestion that living with the maternal grandmother at her home was in any way problematic.

31. I am not persuaded that the father holding over X when he should have (on his own case) been in the care of the mother changes the situation or habitual residence of the two children who have left Australia as permitted by the orders.  I also accept the mother’s submission the father ought not benefit from a situation he created.  True, the mother did not seek to recover X in the short window she had, but she seeks that relief now.  It will be a matter for another day whether X is recovered to the mother (as she seeks), or not, as may well be what the father seeks. 

    Conclusion on s 111CD

32. Particularly because of the court order that remains in force, I am not satisfied that at the time of the hearing of the matter, Y and Z were habitually resident in Australia. In reaching that conclusion I adopt what was said in LK at [34], being that a court order changed their habitual residence.  Upon the mother acting on the relocation orders, that is what has occurred here.  The father’s opposition subsequent to the 2018 orders, in and of itself, cannot render court orders futile.  He had steps he could take but did not.   He has had legal advice on the topic at least from 2022. 

33. Given that, under s 111CD(1) of the Act, there is no basis upon which this Court may exercise jurisdiction for a Commonwealth personal protection measure in relation to the two children. Accordingly, the father’s Initiating Application filed 11 January 2024 must be dismissed in so far as it concerns Y and Z.

    SECTION 69F

34. Section 69F of the Act provides:

    69F  Applicant may be in contempt

    A court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court having jurisdiction under this Act.

35. Justice Austin discussed the discretion enlivened under s 69F in Dautry & Wemple (2018) 341 FLR 105 at [39]-[41]:

    39.Section 69F (and in its former iteration as s 66) of the Act was enacted to abolish, in child-related parenting proceedings under Part VII of the Act, the common law rule discussed in Fahmi that applicants in contempt of orders should not be heard in respect of their fresh applications (Leaway Pty Ltd v Newcastle City Council (No.2) (2005) 220 ALR 757 at [53]-[54]). Section 69F had no work to do in either Fahmi or Watson because the litigation before the court in those two cases was not child-related.

    40.Section 69F is intended to invest the court with broad discretion as to whether an application under Part VII of the Act, filed by an applicant who has failed to comply with a past order made under the Act, is entertained. Its initial purpose was to ensure that applicants would not be shut out from contesting orders in respect of children through operation of the common law rule, which operated as a strict rule with specific exceptions at the time s 69F was first enacted as s 66 of the Act. Now, as a consequence of Fahmi and Watson, the common law rule is applied more flexibly as a discretionary rule in this jurisdiction.

    41.Nevertheless, despite ousting operation of the common law rule, when the discretion under s 69F of the Act is enlivened, its exercise is motivated by the same type of considerations discussed in Fahmi and Watson and depends upon the balance which must be struck between the applicant’s right to procedural justice and countervailing public policy considerations, the ambit of which is not confined (Watson at [36(g)]). Locking an applicant out of procedural access to a court and the consequent deprivation of the opportunity for substantive relief is a serious step and should not be lightly taken.

36. Quite separately, it is not clear to me whether this section is only activated if formal Contravention or Contempt proceedings have been made out.  However, as that was not a matter advanced before me, I will leave that question for another day.  

37. The mother submitted that if I was against her on the habitual residence argument, then I would nevertheless decline to hear the father’s initiating proceeding due to the husband’s failure to comply with the final consent orders.  I understood the mother to also argue this position even if I was with her on the habitual residence issue, because the child X remains within jurisdiction. 

38. The father denies contravening the final consent orders, and submits that even if he had, I would not exercise my discretion to decline to hear him.  He said, in essence, that declining to hear him would be a triumph of form over substance.

39. The mother says the father contravened Orders 32 and 33 with respect to the relocation to Country B. Whilst Order 32 is specifically focused on the mother relocating with the children to Country B, I accept the mother’s submission that it inferentially requires the father to facilitate the children’s departure, by not, for example, holding over a child. I also accept the mother’s submission that she has the benefit of the order and both parties have obligations to comply with it (s 65M and s 65N).

40. The father acknowledges he retained X when the child should have been with the mother, meaning only two of the three children left with the mother.   I do not accept the father’s counter to that, in essence, that he was excused from facilitating the mother’s departure with all three children because the mother did not ask for the child’s return.  Orders are orders; they impose solemn obligations on parties and these orders are not dependent on a party asking for the benefit of what they already have. On the father’s case, I accept the father failed to facilitate the mother’s ability to rely on Order 32 in so far as X was concerned.

1. Order 33 includes travel costs which the mother asked for, but the father did not comply.  It seems, on balance, he has failed to comply with that order too. 

2. The mother says the father also breached the final consent order at Order 16 and the half‑holiday orders at Order 19(b).  In oral submissions, Order 16 was not advanced with any gusto, and I will not further consider it. 

3. As for Order 19(b), the father says at his paragraph 32 that holiday time at the end of Term 4 2023 was “in accordance with the orders”.  On his case, that meant the children were to be with the mother from 1 to 9 January 2024.  For X, that did not occur.  The child went to the father’s during that period and stayed there.  On the father’s evidence, he has failed to comply with Order 19(b).  I accept that to be so.

4. All of that said, I accept the father’s submission that applying s 69F to this matter and declining to hear the father would be a triumph of form over substance. Or to put it differently, as s 69F falls within Pt VII of the Act the father’s breaches of the orders are secondary to paramountcy principle of a child’s best interests. It is common ground that X squarely falls within the jurisdiction of this court. He is separated from his siblings and they are separated from him. His best interests going forward, in terms of parenting arrangements, are paramount. This outcome in no way excuses or exonerates the father’s failure to comply with the orders, and there is a clear public interest in compliance with court orders. However, in the circumstances of separated siblings I do not consider constraining the father from seeking substantive relief to be warranted.

5. I will hear the matters in so far as X is concerned, despite the father failing to comply with the orders as set out above.

   RICE V ASPLUND

6. In an often cited extract in Rice & Asplund, Evatt CJ said at 78,905:

   The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.

   (Emphasis added)

7. Not long after that Nygh J said this in McEnerney & McEnerney (1980) FLC 90-866 at 75,499:

   ....the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.

   One comes back to the fundamental principle that the interest of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court too soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.

   (Emphasis added)

8. Similarly, in Langmeil & Grange [2013] FamCAFC 31, it was said that the rule in Rice & Asplund is founded on the notion that continuous litigation over children is generally not in their best interest.

9. Not surprisingly, s 69ZN(3) of Act directs attention to the effect of litigation on a child.

10. The father submitted, in summary, that the following constituted a material change of circumstance:

    (a)X is now 13 years and expressing strong views to not relocate and wishes to remain in Australia and with his friends;

    (b)X self-placed with the father;

    (c)It was the clear intention of the parties that all three children would relocate, or put differently, the parents never contemplated separating the siblings; and

    (d)The mother’s email of 4 January 2024 (Annexure C to the father’s affidavit filed 11 January 2024, p.37–39) was equivocal about relocating using phrases such as “if I am not allowed”.

11. The mother submitted, in summary:

    (a)Change (in the sense of the children relocating) is hard, but change is exactly what the parents had contemplated by the final consent orders;

    (b)Similarly, it is no surprise the children may be hesitant to live in Country B, but the final orders were what the parties (and court) considered in their best interests;

    (c)Reopening “fully fledged litigation”, to quote the mother’s Senior Counsel, brings with it emotional cost for the children (see for example, Freeman and Freeman (1987) FLC 91-857) and upheaval;

    (d)Two children are living in Country B in compliance with the final consent order;

    (e)X is not living in compliance with the order because the father failed to facilitate his return to the mother;

    (f)Consequently, the separation of the siblings is the “father’s creation”;

    (g)Despite the mother’s many advices to the father, including in November 2022 he made no application to have the orders varied or apply to have the children placed on the Airport Watch List;

    (h)Any friction between the children and the mother is not significant, particularly given the father took no steps to bring the matters before the court to vary the orders or notify the Department of Communities and Justice.  He raises matters of apparent mother‑children friction going back to at least 2019.  More so, strains in parenting three children are just part of being a parent and is not material change of circumstances;

    (i)X’s views to stay in Australia are not determinative (Bondelmonte & Bondelmonte (2017) 259 CLR 662);

    (j)The father’s reasons for now not moving to Country B, as may have been contemplated, ought not be accepted by the court: civil unrest in Country B is not new; if the father has to work five more hours a week in Country B, then so be it; the idea the mother will use Country B law against him sits at odds with the detailed provisions in the final consent orders about parenting arrangements when the children live in Country B; and

    (k)A fair reading of the mother’s email of 4 January 2024 does not see her resiling from her intention to relocate.

12. The order provided that all three children would relocate to Country B with their mother. But, by dint of my reasons with respect to s 111CD, Y and Z are now beyond the reach of this court. X is still in Australia and plainly within jurisdiction.

13. What is required is not only a material change in circumstances but a change of particular quality (Defrey & Radnor [2021] FamCAFC 67 at [22]).

14. I consider that the current separation of siblings is a material change of circumstance that warrants re-opening the proceedings, in so far as X is concerned.  Whilst it can well be said both parties had a hand in the separation of siblings (the father failing to seek variations to the final consent orders, and, the mother not seeking a recovery order prior to her departure), the reality for these children is that they are now separated.  I consider that is not only a material change in circumstances, but one of such quality that it requires consideration within a best interests’ framework and therefore justifies a further parenting hearing with respect to X.

    NEXT STEPS

15. As indicated at the 2 February 2024 hearing, I will have my Associate contact the parties to find a date to hear the “what next”, or “Stage Two” (as I called it at the hearing) aspect of the proceedings.

16. The mother will likely rely upon her application for a recovery order.  Given the orders I am making, I will give the father leave to file an Amended Initiating Application and affidavit with respect to X.  I will hear from Ms Shea, who is here, but I was thinking of 14 days.  I will hear from Ms Swan, [whether] the mother can file any Amended Response and affidavit seven days thereafter.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.

Associate:

Dated:       13 February 2024