Abdoo & Essey [2011] FMCAfam772

8/3/2019 Abdoo & Essey [2011] FMCAfam772

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABDOO & ESSEY [2011] FMCAfam 772

FAMILY LAW – Application seeking to travel outside of Australia with child

to Lebanon– previous consent orders placing child on the airport watch list –

travel advice warnings against travel to Lebanon – question of serious

predictable risk of physical or psychological harm to child should travel occur.

Family Law Act 1975, ss.65Y, 60B, 65DAA, 106A, 60CC, 69ZT, 60CA

Evidence Act 1995 Federal Magistrates Court Rules 2001

Family Law Rules 2004 Australian Passports Act 2005

International Convention on the Rights of the Child International Convention on Civil and Political Rights

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101 Dylan & Dylan [2007] FamCA 842

Pitken & Hendry [2008] FamCA 186Mabo & Queensland [1992] HCA 23

Minister of Ethic Affairs v Teoh [1995] HCA 20 B & B & Minister for Immigration & Multicultural and Indigenous Affairs

[2003] FamCA 621 Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

MS ABDOO

Respondent: MR ESSEY

PAC 6371 of 2007

Judgment of: Harman FM

Hearing date: 18 July 2011

Date of Last Submission: 18 July 2011

Delivered at: Parramatta

Delivered on: 18 July 2011

Abdoo & Essey [2011] FMCAfam 772 Cover sheet and Orders:



ORDERS

For all of those reasons, I am satisfied the following orders are appropriate:

(1) Pending further order and until 25 August 2011, the orders of the LocalCourt [omitted] made 13 June 2008 are suspended.

(2) Pending further order and until 25 August 2011, Ms Abdoo shall have

sole parental responsibility for [X], born [in] 2002.

(3) I note that the above order for sole parental responsibility has the effect

that Ms Abdoo is the only person required to sign any application for

the issue of an Australian passport, visa or Australian travel document

for [X].

(4) Pending further order and until 25 August 2011, [X] shall live with

Ms Abdoo.

(5) Pending further order and until 25 August 2011, [X] shall communicate

with his father between 6 and 7 pm Sydney time each Tuesday,

Thursday and Saturday, and with respect to the same:

(a) Mr Essey shall ensure that he has, prior to 21 July 2011, provided

to Ms Abdoo the telephone number upon which he wishes to

receive calls from [X];

(b) Ms Abdoo shall instigate [X]’s telephone calls to his father or

assist [X] in doing so;

(c) During such calls, [X] shall be entitled to speak with his father

with privacy and without interruption or distraction.

(6) Pursuant to s.65Y of the Family Law Act 1975 Ms Abdoo is hereby

authorised to remove [X] from the Commonwealth of Australia for the

period commencing 1 am, 21 July 2011 and concluding midnight,

25 August 2011.

(7) As and from midnight, 25 August 2011, the orders made by the Local

Court [omitted] as above shall resume operation.




(8) For the above period, 21 July to 25 August 2011, [X]’s name and

details shall be removed from the Federal Police Airport Watch List

and so as to facilitate his travel in accordance with these orders.

(9) Upon return to Australia with [X] and no later than close of business30 August 2011, [X]’s passport shall be lodged by Ms Abdoo with the

Registrar of this Court to be held by the Registrar pending further

order.

(10) Otherwise adjourn the matter for mention and directions before me

11.30 am, 30 August 2011.

(11) In the event that Mr Essey proposes to or files any application for

existing parenting orders during that period, then further directions for the conduct of that application will be made 30 August.

IT IS NOTED that publication of this judgment under the pseudonym Abdoo

& Essey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).




FEDERAL MAGISTRATES

COURT OF AUSTRALIAAT PARRAMATTA

PAC 6371 of 2007

MS ABDOOApplicant

And

MR ESSEYRespondent

REASONS FOR JUDGMENT

1. Before the Court today is an application by the mother of a child, [X],

born [in] 2002, seeking orders from the Court so that she is able totravel with him outside of Australia and specifically to Lebanon for the

purpose of a holiday which initially had been scheduled to occur for a

period of four to six weeks from mid-June to late July but which the

Court is now advised is intended to occur from 21 July until no later

than 25 August 2011.

2. The application was filed by Ms Abdoo on 5 May 2011 and was

personally served the following day, 6 May 2011. Ms Abdoo has raised

some concern and criticism that notwithstanding orders made by

Dunkley FM on 8 June 2011 that a response and affidavit by Mr Essey

be filed and served by 1 July 2011, that she had still not today received

those documents, copies of which have been provided to her while the

matter has been stood in the list.

3. Those documents were, in fact, filed on 5 July 2011, and on the same

date, an affidavit of service was filed purporting to depose to service by

them having been forwarded by registered post to Ms Abdoo. She

indicates that she has not received them. In any event, as I have

Abdoo & Essey [2011] FMCAfam 772 Cover sheet and Orders: Page 1



indicated, the documents are not lengthy or complex and have been

provided to Ms Abdoo today, and I am satisfied that due process can be

achieved by the matter proceeding today, given the adjournment that

has occurred to enable that material to be copied, provided to

Ms Abdoo and read and considered.

4. The parties to these proceedings were married to each other and

separated some little time ago and, in fact, as far ago as 27 July 2007.

5. The first proceedings between these parties in this jurisdiction was an

application for divorce filed on 8 January 2008. That divorce

proceeded and was ultimately dealt with and determined.

6. The parties were then engaged in proceedings before this Courtcommenced by an Application in a Case filed on 9 February 2010 by

Ms Abdoo. That application sought to enforce orders that had been

made by the Local Court at [omitted] and which provided for parenting

arrangements between these parties.

7. Those orders, on their face, would appear to have been made by

consent and on a final basis on 13 June 2008. The existence of those

orders would certainly provide corroboration of the wife’s allegation of

the date of separation or at least separation predating those orders. In

any event, it is asserted by Ms Abdoo that the application was

necessitated by the refusal of Mr Essey to return [X] to her care and it

was on that basis that a recovery order was sought.

8. Prior to the return date of the application, 16 February 2010, and

following service of that application upon Mr Essey, it is asserted that

[X] was returned to Ms Abdoo’s care. It is then asserted by Mr Essey

that from March, some little time after [X]’s return, until August 2010that [X] was kept from him and that he did not spend any time or

communicate with [X]. That issue is in dispute and cannot and, to a

large extent, need not be determined for the purpose of today’s

application.

9. The proceedings are of limited nature but remain proceedings under

Part VII of the Family Law Act 1975, and accordingly, the legislative

pathway set out by the legislation and as discussed in Goode & Goode




(2006) FLC 93-286 and Marvel & Marvel [2010] FamCAFC 101 must

be followed.

10. The Court must commence by considering the objects and principles

set out in s.60B. Those objects and principles, to the extent that theyare relevant to this determination, pertinently provide, consistent with

the International Convention on the Rights of the Child and other

International Covenants and Treaties, that children have a right to enjoy

their culture, including the right to enjoy that culture with other people

who share their culture as well as the clear statement of object and

principle that children generally, and unless and until it is established to

be contrary to their best interests, should have the benefit of having

both of their parents having a meaningful involvement in their lives tothe maximum extent consistent with their best interests as well as a

right to know and be cared for by both of their parents and to spend

time and communicate on a regular basis with both of their parents and

other persons significant to their care.

11. In this case, there is no evidence in support of the relationship between

either party, but one can infer from the orders that were entered into by

consent between these parties, which provide for [X] to live with his

mother and spend each weekend with his father, that the parties accept

that [X]’s relationship with each is good. Accordingly, those two

objects and principles are somewhat in conflict, as clearly [X]’s right to

enjoy his culture with others of that culture and by travelling with his

mother to what might be described as his and her “homeland” (or at

least the place in the world where both of his parents derive from

culturally) would be of benefit to him versus the necessary disruption

that such travel would have upon his time with his father and upon his

education.

12. The Court is then required to consider the presumption of equal shared

parental responsibility and whether it applies, should apply or is

rebutted.

13. The orders that these parties entered into by consent provide that they

are to have joint parental responsibility in relation to [X]. Accordingly,

for the purpose of this interim application, it is not necessary to

determine to any large extent whether the presumption applies in thecontext of determining what orders are best to be made.




14. It is relevant that the Australian Passports Act 2005 provides that the

only person for whom it is necessary to sign an application for a

passport on behalf of a child is a person who has parental

responsibility. Accordingly, as the orders stand, both parents must sign

an application for a passport.

15. The Court has no capacity to use its power under s.106A to authorise or

direct a Registrar or any other person to sign that document in the place

of a parent as regards the issue of a passport or Australian travel

document. Accordingly, that is an issue at large for these parents,

particularly having regard to the timeframe in which it is proposed that

[X] will travel with his mother if authorised by the Court.

16. The consent orders entered into between the parties also provide for an

Airport Watch List order with respect to [X], which would, in addition

to the effect of s.65Y of the Act, not only make it a criminal offence for

either parent to remove [X] from the Commonwealth without the

consent of the other parent or an appropriate court order but which

would provide a practical and logistic remedy to ensure that such a

breach did not occur. Accordingly, Ms Abdoo’s application, quite

appropriately, seeks [X]’s removal from the Airport Watch List or at

least for the period of the intended absence.

17. If the presumption applies, and in this case, and as there is an order for

equal shared parental responsibility on a final basis I propose that it

shall, then the Court is required to consider the provisions of s.65DAA

to the extent that they are relevant.

18. The Court is not being called upon to make any orders with respect to

[X]’s time with either parent, and accordingly, those aspects of

s.65DAA dealing with time are not particularly germane. However,

subs.(5) remains relevant, and in particular those portions of subs.(5)

which deal with the parents’ current and future capacity to implement

care arrangements and, more importantly, their capacity to

communicate with each other and resolve difficulties together with the

impact that the arrangement as proposed, being [X]’s travel with his

mother outside of the Commonwealth, would have on the child.

19. In dealing with s.60CC, and I propose to deal with the s.65DAA subs.(5) factors as part of that exercise – see Carmody Js judgment in Dylan




& Dylan [2007] FamCA 842, Murphy Js judgment in Pitken & Hendry

[2008] FamCA 186 – I am required to consider the primary

considerations, being the benefit to the child of having a meaningful

relationship with both parents and the need to protect the child from

physical or psychological harm.

20. It is suggested as part of Mr Essey’s opposition to [X]’s removal from

Australia that there is a travel advice warning in place from the

Australian Government which cautions against travel to Lebanon at

this time. That is most assuredly the case. However, I am entitled to

take judicial notice of the fact that there are, in fact, travel advisory

warnings of similar nature with respect to a great many countries, and

indeed, there are travel advisory warnings with respect to travel tocountries with which Australia shares security alliances, including the

United Kingdom and the United States. They are not in the same terms,

however.

21. It is suggested by the relevant travel advisory that should you decide to

travel to Lebanon, that you should exercise extreme caution, that there

should not be travel south of the Litani River due to a number of

dangers and difficulties, that under no circumstances should visitors

travel to Palestinian refugee camps, visitors should exercise extreme

caution in southern Lebanon and a number of similar matters.

22. Ms Abdoo’s evidence is that she is travelling to the north of Lebanon

and staying with family. On that basis, I am satisfied that there is not a

serious predictable risk of physical or psychological harm to [X] as and

of the travel itself. I am more concerned, based on the evidence that is

available from each of these parents, limited as it may be, of the long-

term emotional and psychological damage to [X] at the dysfunctional

relationship between the two important adults in his life, to which I

shall return.

23. As regards the benefit of [X] having a meaningful relationship with

both of his parents, the only concern I have in that regard is the period

of disruption in time occurring between [X] and his father. Whilst it

may seem somewhat disingenuous, if I am to accept what Mr Essey

says, [X] has had a recent period of some six months when he did not

spend any time or communicate in any fashion with his father being between March and August of 2010, and it is not suggested in




Mr Essey’s case, that this in any way diminished the nature of his

meaningful relationship with [X]. Accordingly, and on that basis, it is

difficult to understand how an absence of four to five weeks would

impact upon the inherent and essential nature of [X]’s meaningful

relationship with his father.

24. More importantly, if the relationship between [X] and his father is as

strong as is asserted by Mr Essey and it is to be remembered that

Mr Essey asserts that [X] wishes to live with him, it is difficult to

envisage that a child of nine would find the meaningful nature of his

relationship damaged substantially or at all by an absence of four to

five weeks.

25. To the extent that this is a possibility, it must be weighed against the

potential benefits to [X] of travel with his mother. Indeed, bearing in

mind that the primary consideration regarding a consideration of [X]’s

meaningful relationship is with both of his parents not just one, I must

also consider the detriment that refusal to travel with his mother may

have upon [X]’s meaningful relationship with her.

26. It is sought by [X]’s father that [X] be precluded from the opportunity,

a right that is given to him not only by the Act but by the International Convention on the Rights of the Child , the International Convention on

Civil and Political Rights and other international legislation which has

some application in informing decision making in Australian Courts –

see Mabo v Queensland [1992] HCA 23, Minister of Ethnic Affairs v

Teoh [1995] HCA 20, B & B & Minister for Immigration &

Multicultural and Indigenous Affairs [2003] FamCA 621 – of travelling

to the country of his heritage and experiencing his culture with his

extended family including his mother and doing so in a cultural and

geographical context. To deny such travel would have the potential to

impact upon [X]’s relationship with his mother, and in particular, the

nature of his meaningful relationship with his mother and extended

maternal family. Those matters must also be considered.

27. In relation to the additional considerations and particularly [X]’s views

it is suggested that [X] has a strong view to not travel with his mother

but to stay in Australia whilst his mother travels and for [X] to then live

with his father. The only evidence in that regard is annexure A toMr Essey’s affidavit, which is a letter addressed “To Whom It May




Concern” purportedly under the hand of the Principal of that school

dated 29 June 2011. That letter suggests as follows:

On Monday, 27 June, [X] presented himself to me at my office

requesting to speak to me. [X] was visibly upset and asked toclose the door. This is the first time I have spoken to [X] other than to say hello in the playground or his classroom. [X] stated

that his mother wishes to take him to Lebanon for a holiday for

six weeks. The purpose of this holiday is to visit [X]’s grandmother, who is sick. [X] does not want to go, because he

stated that, “She always lies to me. I don’t believe that she

(grandma) is sick.”

When I questioned [X] about why he would think that his

grandmother is not sick, he stated that, “My mum always lies to

me.” [X] wishes to stay – wishes are to stay with his father. Heexplained that his mother and father were divorced and that his

mother does not let him see his father (even though this

contravenes the Family Court order that the school did not know

existed but now have a copy of). [X] explained that his mother did not let him see his father for 150 days.

[X] also talked about his mother lying to the Court and police,

and because of this, his father ends up in jail (referring to an AVO). [X] also discussed that his mother is cruel to him but his

father is always kind.

28. I have a great number of concerns in relation to that evidence. It would

not prima facie be admissible under the provisions of the Evidence Act

1995. However, these are Division 12A proceedings, and accordingly,

the provisions of s.69ZT do not apply save and unless the Court

considers it appropriate.

29. For the purpose of this application, I do not intend to determine

whether the rules of evidence should strictly apply, and I do not

propose to exclude this evidence. However, what causes me concern in

relation to the evidence begins with the first paragraph quoted. On

27 June, being a Monday after which [X] has spent time with his

father, for the first time ever, [X] presents himself to the Principal.

30. In brief cross-examination, Mr Essey indicated that [X] had raised with

him, following service upon him of the mother’s application 6 May

2011, his mother’s proposal to go to Lebanon.




31. It is denied that there has been any discussion or conversation beyond

that between [X] and his father. However, the conversation is instigated

by [X] with someone not otherwise known to him on a day after

spending a period with his father.

32. The terminology and the language used by [X] during that conversation

with the Principal is identical to the language used by his father before

the Court today, and in particular that:

(a) Ms Abdoo always lies,

(b) That [X] was precluded from spending time with his father for a

period of exactly 150 days, and

(c) That he is aware that his father has been arrested, which I take is

what is referred to by his father ending up in jail, whereas

Mr Essey concedes that [X] has never been present on any

occasion when he has been arrested.

33. What flowed inferentially from Mr Essey’s evidence, however, is that

he has himself contacted the police on a number of occasions when [X]

has been with him and indicated one occasion this had followed the

observation of a bruise on [X]. The concerns that I have in relation to

that evidence is that the only evidence I have regarding [X]’s views,

other than the assertion of each party that [X]’s views are in accordance

with their proposal, is that which flows from [X]’s interview with the

school Principal on 27 June 2011.

34. Mr Essey’s evidence is also that he was contacted out of the blue, as it

were, by the Principal and that presumably [X] had provided the

father’s phone number to the Principal to facilitate this.

35. Clearly, also at or following this conversation, the Principal has been

provided with a copy of the orders. It is not clear whether [X] provided

them or some other person. However, certainly as and from some time

between 27 and 29 June 2011, Mr Essey is clearly aware of the school

attended by [X]. He has attached to his affidavit material a printout in

relation to his enrolment which certainly makes clear that Ms Abdoo

has not included Mr Essey’s details as a parent. That may, on the face

of it, cause some real concern as regards subs.(c) of s.60CC(3) and




being the willingness and ability of each parent to facilitate a close and

continuing relationship between the child and the other parent.

36. What is abundantly clear from the material each party has led and the

existence of an apprehended domestic violence order which precludescontact between these parents by any means whatsoever, save in

accordance with orders under the Act, is that these parents do not have

effective communication, and that is an issue of reasonable practicality

pursuant to s.65DAA(5) and a matter that in accordance with all recent

social science literature would suggest a significant negative impact

upon [X], the undermining of the utility of any parenting arrangement

in place between his parents and, indeed, would suggest the real

potential, which I have a concern about but make no finding as to, of [X] being highly involved and enmeshed in this present dispute, if not

others between his parents. Mr Essey has not led any evidence in his

own material with respect to [X]’s views. He has relied purely upon the

attachment.

37. As regards the nature of [X]’s relationship with each parent I have no

real evidence of this but as indicated can only infer that each parent

accepts that [X] has a sufficiently good relationship with each parent to

support the care arrangements that are in place.

38. Willingness and ability of each parent to facilitate and encourage a

close and continuing relationship is raised as relevant. Ms Abdoo is

conscious of the fact that [X] will, as a consequence of absence from

the jurisdiction, not spend time with his father in accordance with

orders made by the Local Court at [omitted] by consent. I am satisfied

that this does not cause her any significant concern, or to the extent that

it is a concern, that she is clearly of the view that the benefits outweigh

the detriments, as it were. She has also indicated that she is prepared to

have [X] contact and communicate with his father whilst overseas, and

there are orders in place that provide for telephone communication

between [X] and his father but not between his parents - that may well

be for good reason from what is apparent from the presentation of this

case.

39. I have no difficulty accepting, similarly on Ms Abdoo’s allegation, that

to the extent that an application for a recovery order had been required




to return [X] to her care, although ultimately the application did not

need to proceed, that there could be an equal criticism with Mr Essey.

40. Quite clearly, I am satisfied from that which is before me that there has

been some involvement, willing or unwilling, witting or unwitting, of [X] in the dispute and so that he has been sought to be engaged as an

advocate in the parents’ cause with respect to this and other disputes.

41. As regards the likely effect of any change there will clearly be an effect

upon [X] if the orders sought by Ms Abdoo are made, as he will miss a

period of some five weeks of school. One aspect that tempers that

concern, however, is that Ms Abdoo makes very clear that she has

spoken to the school, obtained work for him to undertake, and in any

event, at his age in year 4, he is unlikely to be significantly

educationally disadvantaged. To the extent that he is, it is also to be

noted that Ms Abdoo’s initial application had sought to travel with [X]

for a period of time from 21 June to 2 August, which would have then

straddled the recently concluded school holidays and which would

have substantially minimised that impact. It was the opposition of the

application by Mr Essey and the delay in his filing material in

response, noting that the Family Law Rules 2004 and Federal

Magistrates Court Rules 2001 both require that Mr Essey file material

prior to the first return date of the proceedings, that has delayed the

matter and If Mr Essey’s material had been filed prior to the first Court

date the matter could have been dealt with on 8 June and the disruption

minimised.

42. That will not, however, impact upon the reality that there will be a

period of time when [X]’s communication with his father will be

restricted to telephone or internet communication. However, that must

again be viewed in the context of the primary consideration of the

benefit of [X] having a meaningful relationship with both of his

parents. The focus of this application is upon [X] – see s.60CA – not

upon either of his parents, and to the extent that it is a focus upon his

parents, it is a focus upon [X]’s opportunity to have a meaningful

relationship with both of them and not just one.

43. Accordingly, I must be concerned about the likely effect of the holiday

period upon [X]’s relationship not only with his father, being adiminution of time, but as I have indicated, I am satisfied that would




not essentially change the nature of his relationship or the meaningful

nature of it, but also upon his relationship with his mother.

44. It is abundantly clear from the International Convention on the Rights

of the Child and the various documents produced by the United Nationsas part of the sponsorship of that instrument that, indeed, the benefit to

a child as set out in s.60B(2)(e) is that the opportunity for a child to

enjoy their culture, to experience it and to live it as part of a real,

organic experience, is that it will manifestly benefit them and benefit

their relationship with other persons, relatives or otherwise, with whom

they enjoy that culture.

45. That philosophical basis is expanded upon in subs.(3) of s.60B as

specifically regards the right of Aboriginal and Torres Strait Islander

children to enjoy their culture but it is otherwise abundantly clear that

it applies to all cultures and made so clear by the international

instrument itself, (and again, see Teoh, Mabo, B & B & Minister for

Immigration & Multicultural and Indigenous Affairs as to the

importance and application of such international treaties whilst not

enacted in domestic legislation, as informing decision making by this

Court as well as authorities of Canadian courts dealing with similar

issues and which are quoted at length in an article soon to be published

in the Alternate Law Journal).

46. Practical difficulty and expense is not a relevant consideration in this

case.

47. With respect to the capacity of each parent to provide for the child’s

needs, including emotional, intellectual needs I have some concern

arising from the matters to which I have referred in relation to the

evidence of this child’s enmeshment in disputes and ongoing adult

issues. I am concerned that there is some potential impact for upon

needs, particularly his emotional needs, by those needs not being

appropriately met by either parent as a consequence of that disputation.

48. There is also some concern to the extent that [X] may be actively

involved as a supporter of either parent in their position. That would

impact upon his emotional health. However, I am satisfied both parents

are able to meet his physical needs and in the context of the proposedtravel that he would be sufficiently safe and adequately cared for by his




mother and extended maternal family that I have no concerns in that

regard.

49. As regards the child’s maturity, sex, lifestyle and background,

including culture and traditions it is clear that this child is of Lebaneseculture. Both parents, quite clearly from the documents that are filed

with the Court, including the parties’ marriage certificate and the

child’s birth certificate, are from a Lebanese background. Accordingly,

the opportunity for him to travel to and experience the culture from

which both of his parents and, accordingly, he derive is of manifest

benefit to him. He is not of an age where his maturity, even if I had

clear evidence as to his views and clear evidence that those views were

not being influenced by or impacted by the views of either parent,would bear any significant weight or be determinative.

50. Clearly, this child is not of an Aboriginal or Torres Strait Islander

background, but he is most assuredly of a Lebanese background.

51. In considering the attitude to the child and the responsibilities of

parenthood demonstrated by either parent I note that both of these

parents oppose the relief sought by the other. However, I am satisfied

that Ms Abdoo’s application and her attitude towards the child’s travelwith her is responsible.

52. There is a family violence order in force which is made on a final basis.

Accordingly, subs.(k) requires that it be taken into account whether it is

made by consent or otherwise. It exists, and it provides significant

prohibitions.

53. Whether orders are likely to avoid future proceedings is probably not

of great relevance to this application, as the application once dealt withand determined, subject to any appeal, is concluded.

54. Both parties have indicated, and in particular, Mr Essey has indicated

that he may wish to bring an application to vary the existing parenting

orders, and certainly based upon the dynamic which seems to exist

between these parents, that may be of benefit to this child, as clearly

some review of those arrangements is warranted.

55. In relation to travel generally, additional considerations applies as have been identified by the Full Court in authorities such as Kuebler &




Kuebler (1978) FLC 90-434, Line & Line (1997) FLC 92-729. Those

cases indicate that the Court should have regard to matters such as:

a) The length of the proposed stay out of the jurisdiction,

b) The bona fides of the application,

c) The effect on the child of any deprivation of access, as it then

was,

d) Any threat to the welfare of the child by the circumstances of the

proposed environment, and most importantly, and as highlighted

particularly in Line & Line,

e) The degree of satisfaction in the Court based upon an assessment

of a party’s promise to return to the jurisdiction and consequently

whether there should be or can be any security.

56. Certainly it has been raised with Ms Abdoo by the Court whether she

would be content, owning property in this country, to be bound by an

order which precluded her from dealing with it, transferring it or

further encumbering it pending her return to the country and the return

of the matter before the Court. She has indicated her consent to thatarrangement.

57. An issue is also raised on the basis that Lebanon is not a country that is

a signatory to the Hague Convention. Indeed, very few countries within

the world community are. As was observed by the Full Court in Line &

Line:

The Court would have to bear in mind that even if the designated destination is a convention country, once the departing parent

has left Australia, there may be little to prevent him or her

deviating from that designated destination to another destinationin a non-convention country or after going to the designated

destination from travelling on to a non-convention country.

58. I have no concern in this circumstance as to whether it is or is not a

Hague Convention country. However, the issue of security is real. It is

suggested in Mr Essey’s material that he has a real concern that

Ms Abdoo will not return to Australia and, in fact, indicates in his

affidavit material at paragraphs 14C and D that not only is Lebanon not




a Hague Convention country, but that Ms Abdoo was born in Lebanon

and is a Lebanese citizen and that Ms Abdoo has family living in

Lebanon. That is not in issue at least in regards to the family

connections, and that is the very purpose of the proposed travel.

59. It is of concern to me that such matters are raised as Ms Abdoo annexes

to her material and has, since it was served on 6 May 2011, put

Mr Essey on notice of the fact that her mother is ill and she has

annexed a handwritten medical certificate presumably from her

mother’s treating medical practitioner indicating the nature of the

treatment that she is receiving or at least the conditions for which

treatment is provided. Yet it is still asserted that there is doubt in his

mind, and that would appear to have been communicated to or at leasttaken up by [X], judging by exhibit A wherein he indicates that his

mother always lies to him, he does not believe that his grandmother is

sick but when questioned as to why he would doubt this simply

indicates, “My mother always lies to me.” There is no evidence to

suggest that [X]’s statement is, in fact, true.

60. There is a clear cultural reason for the travel and a clear familial

reason.

61. It is also asserted in Mr Essey’s material that the maternal grandmother

has travelled to Australia twice in 2010, and one can infer from that

this he suggests there is thus no reason why the child’s cultural

connection and relationship with extended maternal family cannot be

continued through that again occurring. However, ill health may well

preclude that, and in any event, that would not see the broader

extended family being involved or, more importantly, meeting the

objects of s.60B, being the child’s right to enjoy his culture and to

enjoy it with other people of that culture and who share that culture and

within the geographical context of that culture.

62. The issue of security can, in my mind, be satisfactorily addressed as

indicated above.

63. In contradistinction to Mr Essey’s evidence and notwithstanding

service of Ms Abdoo’s affidavit on 6 May, Mr Essey continues to assert

that he is concerned as to Ms Abdoo’s return. She has attached to her affidavit material a copy of the certificate of citizenship for both her




and [X]. She is employed in Australia, and she owns a property which

she is prepared, effectively, to give security over to secure her return.

64. In that context, I am satisfied there is adequate security and, as referred

to in the Full Court authorities which I have quoted, sufficientsatisfaction in my mind that Ms Abdoo will honour her promise to

return to the jurisdiction.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 2 August 2011

Abd & [2011] CAf 2 C h d O d 1

Abdoo & Essey [2011] FMCAfam772

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