ABDOO & ESSEY
[2011] FMCAfam 772
•18 July 2011
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 186 Mabo & 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 |
| Applicant: | MS ABDOO |
| Respondent: | MR ESSEY |
| File Number: | 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 |
ORDERS
For all of those reasons, I am satisfied the following orders are appropriate:
Pending further order and until 25 August 2011, the orders of the Local Court [omitted] made 13 June 2008 are suspended.
Pending further order and until 25 August 2011, Ms Abdoo shall have sole parental responsibility for [X], born [in] 2002.
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].
Pending further order and until 25 August 2011, [X] shall live with
Ms Abdoo.
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.
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.
As and from midnight, 25 August 2011, the orders made by the Local Court [omitted] as above shall resume operation.
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.
Upon return to Australia with [X] and no later than close of business
30 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.
Otherwise adjourn the matter for mention and directions before me 11.30 am, 30 August 2011.
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 AUSTRALIA AT PARRAMATTA |
PAC 6371 of 2007
| MS ABDOO |
Applicant
And
| MR ESSEY |
Respondent
REASONS FOR JUDGMENT
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 to travel 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.
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.
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 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.
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.
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.
The parties were then engaged in proceedings before this Court commenced 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.
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.
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 2010 that [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.
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.
The Court must commence by considering the objects and principles set out in s.60B. Those objects and principles, to the extent that they are 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 to the 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.
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.
The Court is then required to consider the presumption of equal shared parental responsibility and whether it applies, should apply or is rebutted.
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 the context of determining what orders are best to be made.
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.
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.
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.
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.
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.
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.
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 to countries with which Australia shares security alliances, including the United Kingdom and the United States. They are not in the same terms, however.
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.
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.
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.
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.
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.
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.
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 to
Mr 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 to close 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. He explained 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.
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.
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.
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.
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.
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.
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.
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.
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.
What is abundantly clear from the material each party has led and the existence of an apprehended domestic violence order which precludes contact 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.
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.
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.
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.
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.
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.
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.
Accordingly, I must be concerned about the likely effect of the holiday period upon [X]’s relationship not only with his father, being a diminution 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.
It is abundantly clear from the International Convention on the Rights of the Child and the various documents produced by the United Nations as 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.
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).
Practical difficulty and expense is not a relevant consideration in this case.
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.
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 proposed travel 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.
As regards the child’s maturity, sex, lifestyle and background, including culture and traditions it is clear that this child is of Lebanese culture. 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.
Clearly, this child is not of an Aboriginal or Torres Strait Islander background, but he is most assuredly of a Lebanese background.
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 travel with her is responsible.
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.
Whether orders are likely to avoid future proceedings is probably not of great relevance to this application, as the application once dealt with and determined, subject to any appeal, is concluded.
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.
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.
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 that arrangement.
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 destination in a non-convention country or after going to the designated destination from travelling on to a non-convention country.
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.
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 least taken 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.
There is a clear cultural reason for the travel and a clear familial reason.
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.
The issue of security can, in my mind, be satisfactorily addressed as indicated above.
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.
In that context, I am satisfied there is adequate security and, as referred to in the Full Court authorities which I have quoted, sufficient satisfaction 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
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