A and B

[2003] FMCAfam 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & B [2003] FMCAfam 341

FAMILY LAW – Child – overseas travel – whether risk father will not return child – benefit to child of travel – child has no relationship with mother.

Family Law Act 1975

Line & Line (1997) FLC 92-729

Applicant: H A

Respondent: Y B

File No: MLM 9984 of 2002

Delivered on: 24 July 2003

Delivered at: Melbourne

Hearing Date: 24 July 2003

Judgment of: Phipps FM

REPRESENTATION

Mr H. A appeared on his own behalf

Counsel for the Respondent: Mr W.M. Pinner

Solicitors for the Respondent: Michael L. Maplestone

Counsel for the Child Representative: Mr D.J. Crabtree

Solicitors for the Child Representative: Donald S Lampe

ORDERS

1. THAT paragraph 1 and 2 of the Order made by Federal Magistrate Connolly on 15 April 2003 restraining the Father from removing the child I A born 23 November 1992 from the Commonwealth of Australia be suspended between the period 26 July 2003 and
   16 September 2003.

2. THAT notwithstanding all previous orders the Father be permitted to take the child I A born 23 November 1992 out of the Commonwealth of Australia leaving 26 July 2003 and returning 16 September 2003.

3. THAT the Father deposit by 12 noon on 25 July 2003 with the Child Representative the sum of $5,000.00 to be held in trust to be paid to the Husband if he returns to Australia by midnight on 26 September 2003 and if he does not to be paid to the Mother.

4. THAT otherwise all extant applications be fixed for a 1-day final hearing on 22 October 2003 at 10.00am.

5. THAT each party file and serve any further material upon which they seek to rely no later than 7 days prior to the hearing.

6. THAT costs be reserved.

7. THAT pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9984 of 2002

H A

Applicant

And

Y B

Respondent

REASONS FOR JUDGMENT

1. The court is dealing with an application by the Husband to take his child, Iram A, born on 23 November 1992, to T.  The Husband and Wife were married in T in December 1991 and separated in March of 1992 in T.  The child, I, was conceived shortly prior to the separation.  The Husband left T and came to Australia to live.  The child remained with her Mother in T until November 1995, at which point she and her Mother migrated to Australia.

2. They lived for a very short time with the Husband and then separated again.  The Mother formed another relationship.  As a result of that partner's abuse of the child, the Department of Human Services stepped in, placed the child Iram with a foster family and then in April 1997 she was placed in the Husband's care, where she has remained ever since.  The Mother went to T two months later.  She came back in June of 1998 and requested contact, which was refused.  She went back to T in February of 1999 and then in December 2001 she settled in P, by that stage having remarried.  She has a child by that marriage and an older daughter from an earlier relationship.

3. The Mother has seen the child only once since the child went into Mr A's care.  That was when she turned up unannounced and saw the child at school on 8 April of this year.  There had been earlier proceedings in the Family Court in 1998 which, as best as I can follow, resulted in contact being reserved.  The Mother then commenced these proceedings on 3 December 2002 in which she was seeking contact.  Directions were given resulting in the appointment of a child representative and a report being prepared by Mr Roman Jansen.

4. When the matter came back to court on 30 June 2003, the Husband was represented by a solicitor and had been up until that time:  Mr Maplestone.  Mr Maplestone informed me that he had been told the Friday before by the Husband that the Husband had tickets to go to T, taking the child to T the following Saturday, that is, on 5 July 2003.  He made an oral application to permit the child to be taken.  Mr Pinner at that stage represented the Mother and was faced with the difficulty that the Mother was in P and he needed the assistance of a T interpreter; either he or his solicitor needed the assistance of a T interpreter to obtain instructions in any event.

5. I adjourned the matter until later in the week of 3 July 2003, by which stage a brief affidavit had been filed by the Husband.  On that date I adjourned the application until today.  On 15 April 2003 there had been an order made restraining the Husband from removing the child from Australia and with the normal orders in relation to the marshal, police forces and the airport watch list.  I made directions on 3 July 2003 concerning the filing and serving of an application by the Husband to take the child out of Australia.  That has been done and I now have it for determination.

6. The Husband in his affidavit sworn on 4 July 2003 sets out that he is now an Australian citizen.  He has a p business in Australia.  He has arranged for another p to mind his business during the seven weeks of his intended stay in T.  He says that he has bookings and those bookings extend after the anticipated return date from T.  He exhibits a lease that he has for his premises.  It is a two-year lease.  It is dated

   
   

   5 February 2002.  That seems to be its commencement date but in any event it is a two-year lease, at an amount of $628.00 a calendar month.  He has a letter from the managing agents states that he has paid his rent in advance until 1 September 2003.

7. He also deposes to needing a hip operation and he exhibits an appointment notification from the hospital.  There is a letter exhibited which is from the Austin and Repatriation Hospital.  He had an appointment on 8 September 2003.  That has now been put back to

   
   

   9 February 2004.  He says he needs a hip operation, although this is an appointment at the outpatients department so it would seem to be a preliminary appointment or appointment for tests and so on.

8. He says also, as well as saying that he is an Australian citizen, that he has no right to work in T.  He is not a citizen of T.  He has no right to stay in T indefinitely.  He also exhibits the travel documents which show that he has the return tickets arranged.  He now has it arranged to depart on 26 July 2003 and return on 14 September 2003.  In response is an affidavit by the Wife and so far as the Husband's intentions are concerned, she can do no more than state her fears that he will not come back to Australia.  She believes he may have a lady friend in T whom he might marry.

9. There is a report from Mr Jansen.  He saw both parties.  He interviewed the child.  He observed the child with the Mother.  I do not need to go through what is said in the report in any detail but I can merely state his conclusion, which is:

   In the circumstances, however, the writer regrets that little is likely to be achieved by ordering contact along the lines proposed by Mrs B, namely, school holiday contact, and recommends that Mrs B be permitted to send letters, cards and parcels to Iram.  However, one cannot feel confident that Mr A will allow even these to reach her.

10. Mr Jansen's interview with the child and then his joint interview or an observation of the child with the Mother shows that the child wants nothing to do with her Mother and is significantly alienated from the Mother.  It is quite clear from what Mr Jansen reports that his conclusion is correct.  Nothing would be achieved by ordering contact because the child would not go.  The child would simply refuse.  So it is against that background that I have to decide the application.

11. The Husband is now appearing for himself.  He has said that he could provide a cash security.  He has told me today that he could provide a cash security of $5000.00.  The principles that have to be applied are set out by the Full Court of the Family Court in Line & Line (1997) FLC 92-729. An assessment must be made of the Husband's motives for going and an assessment made of the risk that he might not return. The best interests of the child have to be taken into account in terms of the benefit to the child of travelling to T and an assessment must be made of the potential to hinder contact between the child and the other parent and so perhaps hinder or damage the relationship.

12. The matters I have recounted from the Father's affidavit are not challenged.  He is well established in Australia.  He has a business in Australia.  He is a citizen of Australia.  The circumstances in which he made the arrangements to go are a little unusual but it would seem that he misunderstood the nature of what was involved in the court proceedings and thought that on 30 June 2003 the whole process would be finally resolved and he could then move on and he could leave Australia.  He had not told his solicitor prior to that, which is again unusual, but it may be that he did not realise that there would be any difficulty.

13. He has a business in Australia.  He has a lease in Australia.  He must have expensive equipment because of being a p.  He has advance bookings and he has incentive to return to Australia for his medical appointment.  If he needs treatment or surgery, in Australia that will be done under Australia's public health system.  He would have no prosect of having that done in T.  I can take judicial notice of that.  That, combined with his offer to put $5000.00 cash up as security, persuades me that the risk of him not returning is not sufficient to stop the child going.

14. As against that, there is substantial benefit to the child.  She was born in T and her parents are T.  She lived the early years of her life in T.  She has relatives on both sides who she can see.  She will be able to enhance and promote her T heritage, knowledge of the T language and knowledge of T culture.  It will not damage the child's relationship with her Mother because unfortunately she has no relationship with the Mother and nothing the court can do at the moment can help to promote that relationship.

15. I think there is a significant risk that if the Father was not permitted to take the child to T, that might damage what prospects there are of the child developing a relationship with her Mother.  She has extremely negative attitudes to her now.  No doubt the child is looking forward to travelling to T, no doubt she is aware that it has been postponed and that is because of the Mother's proceedings in the court.  If she is prevented from going completely, she would inevitably even if not told specifically draw the obvious inference that it was her Mother's fault.  So it is a situation where it appears from the report that it may be some years in the future, if any, before the child moves on towards developing any relationship with her Mother.  Not letting her go would mean there is a risk that the negative attitude to her Mother will be reinforced and so the prospects of a change that put back to that extent.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

Date: