Tannir & Shay (No 2) [2025] FedCFamC1F 173 (17 March 2025)

1. When changeover does not occur at X's childcare or school, the father shall collect X from the mother's residence, with the father to remain in his vehicle, at the commencement of time that X spends with him and shall deliver X to the mother's residence at the conclusion of such time, unless otherwise agreed in writing.

1. Should either parent be unable to care for X overnight during a period when he is living with them pursuant to these orders, that parent shall provide the other parent the first right of refusal to care for X with no less than seven days' notice in writing (or, where that is not practicable, at the earliest opportunity).
2. Should either parent's health deteriorate to the extent that they are unable to substantially care for X in accordance with the terms of these orders, the parties shall attend family dispute resolution to review the appropriate arrangements for X's care.

1. The minute of consent orders as amended with tracked changes be marked Exhibit "A" and remain on the Court file.
2. The previous orders which required the mother to file and serve her closing submissions in these defended proceedings by no later than 28 February 2025 be and is hereby discharged.
3. This matter be fixed for continuation of the final hearing before me on 25 August 2025 estimated to take 5 days ("the first hearing date").
4. I grant leave to all parties to reopen their respective cases in this matter for the purpose of adducing evidence relevant to the mother having recently given birth to a child.
5. The parties file and serve all affidavit evidence upon which they reply, which not already filed and identified as relied upon and before the Court, as follows:

(a) The respondent mother no later than 12:00 noon on 21 July 2025;

(b) The applicant father by no later by 12:00 noon on 4 August 2025; and

(c) The Independent Children's Lawyer by no later than 12:00 noon on 12 August 2025.

UPON NOTING that the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them:

AND UPON FURTHER NOTING that the parties have each been advised by the Court:

(a) that pursuant to these orders, neither party may cross-examine the other party personally;

(b) that pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(c) as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d) that a copy of these orders will be provided by the court to Legal Aid, which administers the said scheme.

1. The requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 13 March 2025.
2. Each party consider, prior to the further hearing of this matter, what capacity they have to cross-examine the other party in the context of s102NA.

1. Each of MR TANNIR and MS SHAY and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2021, from the Commonwealth of Australia.
2. X be and is hereby restrained from leaving the Commonwealth of Australia.
3. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Airport Watch List until further order.
4. All parties have leave to issue unlimited subpoenas as they consider appropriate but any document must be returnable and inspected prior to the commencement of the further hearing of the matter.
5. The Independent Children's Lawyer arrange for Ms K to be on call to attend the final hearing to give evidence and be cross examined.
6. Liberty is granted to the parties to contact my Chambers to arrange to have this matter listed for mention before me, on notice to all other parties, to seek such further directions as any party considers are necessary to ensure that the matter is ready for continuation and completion of the trial or to narrow the issues in dispute.
7. The Court arrange an interpreter for the mother for the final hearing.
8. Costs of today are reserved.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

1. If after the expiration of the period set out in paragraph 13 of this Order, any parent seeks that the child remain on the Airport Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Federal Circuit and Family Court of Australia_._
2. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

1. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

1. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
2. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter comes before me by way of mention following the final hearing of the father's final parenting application dated 23 March 2022 and further amended on 30 September 2024. The matter was initially heard by me on 13 January, 15 January, 16 January, 17 January and 21 January. The mother was self-represented. An order had been made for funding for representation for the mother under s102NA of the Family Law Act 1975 (Cth) but the mother was not happy with the allocated solicitor and preferred to represent herself. Accordingly, the s 102NA was discharged so that the mother could cross-examine the father. The father represented by Ms Paterson of Counsel and the Independent Children's Lawyer by Mr Gardiner of Counsel. The substantial issue for determination is the mother's application for relocation to Country B with her and the parties' son, X (aged three, born in 2021).
2. By way of brief background, the parties met through an internet dating service in Country B and commenced their relationship in 2013. They relocated to Australia in 2016. They separated finally in December 2021, however, the mother says it was October 2021 and, thereafter, the parties lived separately under the same roof. In any event, the parties had a relationship which spanned some eight years, but only a few months of it with X as a member of their family. That was a fractured and eventful few months. The material indicates that, following the birth of their child, the mother was diagnosed with a medical condition, having experienced a worsening of symptoms throughout pregnancy. The evidence before me is that her symptoms were stable as at the time of final hearing.
3. The mother seeks to relocate to Country B, in short, because she says she has little financial or social support in Melbourne, does not speak English fluently enough to obtain a job, and is living in social housing. She says that in Country B she would be supported by the wider maternal family including her sister and aunt in a substantial manner including providing her stable housing. She says there are greater employment prospects for her in Country B in her field and that, in the event her medical condition worsens, she will have access to free treatment and a wide social support network for herself and X. The mother says that Melbourne is not safe for her and her son to practice their faith and that relocation to Country B would allow the child to practice his religion without fear.
4. The father opposes the mother's relocation application. He says that the mother will not facilitate the relationship between himself and the child in the event of relocation and that he provides her with as much support as he can in Australia, including by taking care of the child on little notice for long periods of time. He points to a scenario that occurred in late 2024 when the mother went to Country B for what she said would a fortnight for a family funeral, but was extended to five weeks, including a holiday. The father says this extension of time, combined with lack of clarity on the mother's return date, contributed to him losing his employment due to unavailability to work due to caring responsibilities while he was in his probation period. He says that he can and does support the mother financially to the best of his ability and has proposed to pay spousal maintenance of $100 a week, on top of statutory child support payments, until he finds work. Further, he says that it is not in the child's best interests to move to an area of civil unrest in Country B. He says that he may not be able to relocate as well as his employment expertise would not be recognised in Country B.
5. In the event the relocation application is not allowed, the parties had substantially agreed on the parenting orders to be made.
6. In the course of evidence before me, the mother re-stated her desire to have more children, stating it was "her dream". The mother says that she underwent a round of IVF "[...] months ago" and has used social media looking for co-parents. She repeated before the Court on several occasions that she had previously engaged in IVF but was no longer being treated. On 22 November 2024.the mother told the Family Report writer explicitly that that previous round of IVF had not been successful.[1]
7. The mother had previously undergone treatment for her medical condition at M Hospital. That engagement was ceased at some stage. In the course of the hearing, the mother gave evidence that she had engaged N Hospital and O Hospital for IVF treatment. There were no subpoenas issued to the N Hospital or O Hospital. There was no evidence before me to suggest that the mother was currently pregnant. She wore modest, layered clothing in Court and was not visibly or obviously pregnant. Prospectively, there was some evidence by the mother that she would consider engaging in IVF under a Country B program.
8. Following the close of evidence on 21 January 2025, the father and Independent Children's Lawyer filed their final submissions. The mother was due to present her final submissions orally on 20 February 2025. That date was adjourned, by consent, and the mother was required to submit her final submissions in writing and orders were made requiring them to be filed by no later than 28 February 2025.
9. On Sunday, 2 March 2025, my Chambers received the following email from the mother:

Dear Associate and Practitioners,

I am unwell new for the last 5 days, I could not file my submission at time.

I'm sorry for the delay and inconveniences , and I am slightly better today and hope to finish and file in 2 days or so.

Can provide a certificate from GP if needed.

Regards,

[ Ms Shay]

1. The following day, my Chambers received the following email from the father's solicitor:

Dear Associate,

I continue to act on behalf of the applicant father, [Mr Tannir], in the above matter.

At 4.10pm today, my client received a text message from the respondent mother, [Ms Shay], which included the following:

Hi [Mr Tannir]. Today earlier then (sic) expected I gave birth to a little boy, and [X] became a big brother...

Given the current status of these proceedings and the impact the above disclosure by the mother may have on their future conduct, my client respectfully seeks that the matter be listed for mention before Justice Bennett to address these new issues.

I have copied the mother, the Independent Children's Lawyer and counsel, and counsel for my client into this email.

Kind regards,

[...]

1. The mother confirmed by way of email received on Tuesday 4 March:

Dear Associate and Practitioners,

I am the responded Mother and I confirm I gave birth earlier today.

I have my personal reasons why I could not been sharing this pregnancy before the actual birth date.

I will stay in the hospital probably for few more days, I did notify [Mr Tannir] today and will be filling my submission as soon as I can getting the document done.

I will wait to hear about either or not we will be sitting for another day or not.

Kind Regards,

[Ms Shay]

1. I listed the matter for mention on 13 March 2025 by way of MS Teams. The appearances before me on that occasion were the same: Ms Paterson for the father, Mr Gardiner for the Independent Children's Lawyer and the mother in person. It is fair to say that the mother did not seem to appreciate the relevance of her concealment of her pregnancy on her relocation case over and above saying at the mention that she "legally [has] the right to hold this information and it should not impact on the first child in any way. I have my personal reasons".
2. Counsel for the father and the Independent Children's Lawyer applied, with understandable reluctance, to re-open their respective cases. The mother opposed any further hearing of the matter. I am satisfied that there must be further evidence. I have set the matter down for a further five days for my next available date, being 25 August 2025.
3. The parties had previously put forward a consolidated minute in the circumstances that the mother was not permitted to relocate to Country B. That minute was tendered and marked Exhibit F4. Before me today, Counsel for the father requested I make some orders previously agreed in Exhibit F4 in the circumstances that the mother, if permitted to relocate, would not obtain a final decision until at least August 2025 (the adjourned date) and likely longer. Counsel forwarded a proposed minute, extracted from Exhibit F4. The proposed orders go to interim spend-time arrangements for cultural and religious holidays, changeover and a first right of refusal for care for the other parent if the parent scheduled to have time is unable to accommodate time on that occasion. The mother requested time to review the minute. She sent through her consent to the minute in the afternoon of 13 March 2025. Orders were made by consent in those terms.
4. Both the mother and the father will need to make applications to the s102NA scheme to obtain representation.
5. The father made an oral application for an Airport Watchlist Order. There had not previously been a need for such an order, but Counsel for the father raised that the father now has concerns about the mother's veracity and ability to justify her actions and seeks to enjoin the mother from removing X from Australia without his consent. The mother opposed the order submitting, correctly, that she had never tried to take the child out of Australia without the permission of the father. This case may develop significantly in the next few months. There is no evidence of the new baby's paternity. The mother may take legal advice.
6. I will make the Watchlist Order and reconsider the matter at final hearing.
7. The costs of the mention are reserved. The father has foreshadowed an application for costs for the mention and substantive hearing.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

[1] Family Report of Ms K dated 1 December 2024, page 11.