Ayral & Ayral
[2023] FedCFamC2F 987
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ayral & Ayral [2023] FedCFamC2F 987
File number(s): MLC 4956 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 26 July 2023 Catchwords: FAMILY LAW – overseas travel – where father wants to take the child to Country B – where the mother does not agree to the child being removed from the airport watchlist – where the mother has previously taken the child to Country B without the father’s consent – where the parties have previously gone to Country B together – where the travelling country is a Hague Convention country – orders removing the child from the airport watchlist – orders for the child to travel with the father to Country B. Legislation: Family Law Act 1975 (Cth), ss 60CC, 69ZL Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 26 July 2023 Place: Melbourne Solicitor for the Applicant: Borchard & Moore Solicitor for the Respondent: Hartley’s Lawyers ORDERS
MLC 4956 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AYRAL
Applicant
AND: MS AYRAL
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
26 JULY 2023
THE COURT ORDERS THAT:
1.The Father be permitted to travel outside of the Commonwealth of Australia with the child X born in 2012 (‘the child’) to Country B departing from Melbourne to Country B in September 2023 and departing Country B to Melbourne in November 2023.
2.The Court requests that the Australian Federal Police remove the names of the child X born in 2012 from the Watchlist at all points of international arrivals and departures in Australia.
3.The parties be at liberty to provide a copy of these Orders to the Australian Federal Police or other relevant government body related to the Airport Watchlist.
4.In the event that the child’s contact details whilst in Country B differ from those contained in the Father’s Affidavit filed on 23 May 2023 that the Father forthwith notify the Mother.
5.The Father facilitate and/or accept calls to and from the child and the Mother at all reasonable times whilst the Father and child are in Country B.
6.The child spend make up time with the Mother as follows:
(a)From Saturday 9:00am to 5:00pm on the following dates:
(i)29 July 2023;
(ii)5, 12, 19 and 26 August 2023;
(iii)2 September 2023;
(iv)11 and 18 November 2023;
(v)2 December 2023.
(b)From Saturday 5 August 2023 at 10:00am to Sunday 6 August 2023 at 5:00pm;
(c)From Saturday 4 November 2023 at 10:00am to Sunday 5 November 2023 at 5:00pm.
7.Subject to these Orders, the Interim Parenting Orders made on 17 May 2023 remain in full force and effect.
8.The Father’s Application in a Proceeding filed 24 May 2023 and the Mother’s Response filed 28 June 2023 be dismissed.
9.The Mention on 4 October 2023 be vacated.
10.The matter be adjourned for Directions Hearing at the Federal Circuit and Family Court of Australia before a Judicial Registrar via Microsoft Teams on 8 November 2023 at 2pm.
AND THE COURT NOTES THAT:
A.The chambers of Judge O’Shannessy will provide a copy of these orders to the Australian Federal Police.
B.The Father asserts his accommodation while in Country B will be his brother’s address at C Street, City D, Country B.
C.The Father asserts his contact numbers for telephone/facetime/WhatsApp communication while in Country B are his number, … and his brother’s number, ….
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then 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.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
The Father, and the Applicant for the purposes of this application, is Mr Ayral aged 46 years (‘the Father’). The Mother, and the Respondent for this application, is Ms Ayral aged 42 years (‘the Mother’). The parties commenced cohabitation in 2011 and married in 2013. They separated on a final basis in 2018 and divorced in September 2020. There is one child of the relationship, X, aged 10 years old. Pursuant to current interim orders of this Court, X lives with her father and each Sunday during the day with her mother, and one overnight per month.
Can the Father take X to Country B for a holiday?
In this matter the question I must determine is whether I should permit the Father to take X to Country B for a two-month holiday between September and November 2023. X has lived with the Father from at least 3 September 2021, and probably 30 July 2021. The Mother opposes the Father taking X on that holiday, because she says there is a real risk that he will not return with X.
Country B is a Hague Convention country
It is common ground that the country to which X’s father wishes to take her for a holiday is a party to the Hague Convention against the abduction of children. The practical consequence of that is that were a parent to wrongly withhold the child in the other country, and upon receiving notice from the Australian Central Authority and a request to return the child, which follows as a matter of administrative course, the Central Authority for the Republic of Country B would be compelled by that treaty to commence proceedings seeking to return X to Australia forthwith unless there were a limited range of exceptional circumstances. That is the point of the Hague Convention. The reciprocal obligation applies. If a child was removed from Country B wrongly, or wrongly detained in Australia, and the Australian Central Authority received a request from the Country B Central Authority, the Australian Central Authority would be compelled to take any necessary court proceedings seeking that child wrongly detained or wrongly removed to be returned to Country B.
The purpose of the Convention is to prevent the chaos of international unilateral relocation all over the world, and just as importantly to have contests about where a child should live undertaken in the place where the child was habitually resident. In this case, the parties are both Australian citizens, and X is an Australian citizen. X was born in Australia.
X’s first trip to Country B with her parents
In 2016 the parties, X and the Mother’s child from a previous relationship, Ms E, travelled to Country B for three months, and that for one month during that time, X remained with the Father at her father’s place of origin in Country B while the Moher travelled to her own family’s place of origin in Country B.
The Mother (unilaterally) takes X to Country B
In 2019 the Mother, X and Ms E travelled to Country B and remained there for some months. It is not disputed that the permission of X’s father was not obtained before departing Australia or that he ever had notice of the trip.
In 2018 or 2019, the Mother obtained an intervention order against the Father. In this case, there are serious and unfortunate allegations of family violence, one against the other. Each alleges that the other has threatened to kill him or her. On an interim hearing, and looking at each of the parties sitting in the Court, where they look like perfectly ordinary, normal people, it is hoped that both of their allegations are untrue. It is possible that one allegation is true, it is possible that both are true, but I am not in a position to make any finding about that. What arose from allegations in 2018 or 2019 was the obtaining of an intervention order for the protection of X and the Mother against the Father.
Alleged breach of IVO while Mother and X overseas
Whilst the Mother and the child were in Country B, and the Father asserting that he did not know where they were (and it is not suggested he knew where she was), he attended X’s school for the purpose of making inquiries as to where she might be. The school apparently had been provided with a copy of the intervention order, which included a term that the Father was not to attend within 200 metres of the child’s school. It appears as a result of that when he attended the school to make those otherwise perfectly reasonable inquiries, notice was provided to the police of this alleged breach of the intervention order. It appears, or at least there is no evidence, that X’s mother had anything to do with the pressing of charges in regard to the breach of that intervention order. The Father ultimately would appear to have admitted that breach, or admitted to behaviour characterised as a breach, and was placed on a good behaviour bond. The Father alleges, and it is not contested, that that is his only interaction with the criminal justice system of either Australia or Country B.
After some time in Country B, the Mother returned X to Australia, and by agreement, there was an arrangement for the Father to spend time with X. The Father contends, and it is not disputed, that he regularly saw X during that period.
The Father attempts mediation
In August 2020, the Father attempted to commence mediation through F Counsellors, he says, to regularise arrangements as to X’s living arrangements, including his time with her. Nothing happened. In November 2020, he was provided with what is known as a section 60I certificate, which indicates that he has attempted mediation but that because of the non-attendance of the Mother proceeding with mediation was not possible. The unhappy state of affairs of X living with the Mother and there being uncertainty about the time she spent with the Father continued until the middle of 2021.
The Mother leaves X with Father and travels overseas
On about 3 September 2021, according to the Mother’s recollection, or 30 July 2021, according to the Father’s recollection, the Mother left X, without notice to the Father, with friends of the Father’s, Mr and Mrs G. The following day, she delivered X’s clothes to Mr and Mrs G. They contacted the Father, and he collected X, and she has lived with the Father since.
The Mother says that she travelled to Country B on or about September 2021 of that year. That is consistent with the Father’s understanding of events. If that is correct as to when she left to travel to Country B, just what she was doing in August 2021 is not known. However, it is common ground that X was left with the Father at the time the Mother chose to travel to Country B with Ms E. It is not disputed that the Father was not informed about the trip. He was not informed that the Mother was going at all or when she would come back. Further, it is common ground that there was no communication between the Mother and X or the Mother and the Father whilst the Mother was in Country B.
Father engages psychologist for X
It is also significant that in August 2021, after X came to be suddenly in the Father’s care, he had X consult with a psychologist and has continued that consultation on a three-weekly basis since. That is to be commended in all the circumstances.
Mother returns to Australia
The Mother alleges that she returned from Country B, and I expect in due course she will be able to prove that by reference to her passport, on or about the middle of February 2023. It is not suggested that the Father was notified of that return. The Father says at this point he still did not know what the Mother’s intentions were.
Father obtains new passport without the Mother’s consent
The Father renewed X’s passport in March 2022. I raised with the lawyers for the parties the issue that I did not require evidence to be given of the fact that for a passport to be issued in Australia in March 2022, application for it would have to have been made at least some weeks prior, given the notoriety of the difficulty of obtaining passports at short notice in 2022. There was no objection to me proceeding on that basis. In these proceedings, the Mother attaches some significance to the fact that X’s passport was renewed without her knowing about it and without notice to her. She sees the potential for mischief in that circumstance. The Father’s explanation is that X had a passport, as the parents had used that together for X to travel to Country B, and that he thought it was sensible that that be kept current and up-to-date. Many people in the community would share such a view to keep their children’s passports current and their own. Hence, he says his activities to obtain a renewal of the passport were not in any way mischievous, because he did not know how or where he could contact the Mother, in any event.
It transpires on the Mother’s account that she first had contact with X by attending X’s school on or about 15 and 16 March 2022. There is some irony that for the Father to attend X’s school in 2019 to ascertain her whereabouts, when X was with her mother in Country B without his consent or cooperation, was regarded as a criminal offence, but when X’s mother attends the same school not only to make inquiries about the child but to see the child without consulting with the Father, there are no consequences. I might add at the time the Father attended X’s school in 2019, it is common ground that X and her mother were in Country B. Nonetheless, that was pressed by the administration of justice in Australia to be a criminal offence by the Father.
The Mother seeks time with X directly
Notwithstanding that the Mother saw the child at the school in March 2021 (I accept her evidence that she did so), and the Father was not aware, he says, of her return to Australia until the following April. The Father alleges by reference to text messaging that he received communication from the Mother, or discovered that the Mother was back in Australia, on or about 8 April 2022. He learned this because of the circumstance that without his consent or knowledge, the Mother had passed to X a mobile phone when she visited her at the school, and he learned of their communications. He listened to a telephone conversation where the Mother told X, the conversation being on loudspeaker, that she would collect her that weekend.
The Father says that he asked the Mother could he and her speak about parenting arrangements. He was told by the Mother’s daughter, Ms E, that the Mother did not want to talk to him about X’s parenting arrangements. He then received text messages from the Mother which he says, and it is not disputed, said in substance when translated, “I will come by court order to see my daughter soon.” In a not entirely courteous exchange of text messages thereafter, the parents communicated, but that communication included, on 9 April 2022, the Father asking Ms E to pass on the message to X that:
I will give her every week on Friday evening and take her on Sunday evening. If she wants to talk, call me and let’s talk face to face. Thank you.
The reply was:
Call me back. I want to talk about [X].
Further communication occurred on 12 April 2022, where there was a request by Ms E wanting to speak to X, who was outside at that moment and not available to talk, and he says that he said “okay.” He says that was the last communication. The events of 12 April 2022 are disputed. On the Mother’s account, on 12 April 2022, as she sets out in paragraph 35 of her affidavit:
I sought an IVO against the Father on 13 April 2022, as the Father called me and threatened to kill me if I returned to the child’s school. This threat was made over the phone on 12 April 2022.
The Father’s version of conversations on 12 April 2022 is merely the “okay” conversation.
After the Mother failed to participate in mediation, the Father obtained a section 60I certificate.
Mother issues proceedings
On an urgent basis and without having attempted any mediation, the Mother was able to issue proceedings in this Court on 11 May 2022. By the process of providing the Australian Federal Police with a copy of the application and a request to place X on the airport watchlist, the Mother was able to place X on the watchlist, which would prevent her travel outside of Australia.
Consent Orders for the Mother’s time
The first return of the Mother’s application in Court was 3 June 2022. The matter was adjourned, and it is apparently common ground, because the Mother had at a time in about May 2022, after issuing the application, returned to Country B herself. She says returned on in June 2022. The 3 June 2022 return date of the proceedings was adjourned to 21 July 2021. On that occasion, the first when both parents were in the country for the return of the proceedings, orders were made by consent that X was to see her Mother each Sunday from 9am until 5pm and to speak to her by telephone each Wednesday. It is the Father’s account that that time has by and large proceeded, and proceeded well enough, but has been hindered by some inconsistency in the Mother not attending for all of those designated times.
Overnight time commences by consent
The orders of 21 June 2022 remained in place until 17 May 2023, when further orders were made by consent to the effect that the Mother would continue to spend each Sunday from 9am until 5pm with X and that she would spend one Saturday each month from 10am Saturday until 5pm Sunday with X. It is alleged and not disputed that all of the overnight times have occurred but that some of the weekly daytime positions did not occur. It is alleged that on 11 June 2023, 25 June 2023 and 9 July 2023, no time at all occurred between X and the Mother, because the Mother was not available. The time on 23 July 2023 was cut short at the Mother’s election.
The Mother has health issues
The Father acknowledges that on or about 23 June 2023 the Mother had to go to hospital. He is not sure of the details about why that was. It is common ground that the Mother is in receipt of support through the NDIS scheme and has a carer who has attended court with her. It is common ground that the Mother has some physical issues and some mental health issues, but I do not have any details of those at this time.
SHOULD X TRAVEL TO COUNTRY B?
It is the Father’s case is that there is no risk whatsoever of him not returning X, as he says he will, on the basis of:
·He being an Australian citizen;
·He having lived for many years, and X having lived all of her life, in Australia;
·He having permanent accommodation;
·He being entirely supported by social security benefits by the Commonwealth of Australia; and
·X attending school that he has arranged nearby his accommodation.
He says that it is in X’s interest to take a roughly two-month holiday to spend time with him and his family in Country B, and in particular to visit the paternal grandmother, who she communicates with regularly and to whom she is close. X’s psychologist has written letters in support of the Father maintaining residence of X, and also suggesting that it would be a good thing for X to holiday with her father in Country B at this time.
The Father seeks the following orders:
1.The Father be permitted to travel outside of the Commonwealth of Australia with the child … to [Country B] departing from Melbourne to [Country B] [in] September 2023 and departing [Country B] to Melbourne [in] November 2023.
2. The child … be removed from the Commonwealth Airport Watchlist.
3. Prior to travel the Father provides to the Mother a copy of the following:
(a) Itinerary;
(b) Accommodation details;
(c) Contact details.
4.The father facilitate and/or accept calls to and from [X] and the Mother at all reasonable times while in [Country B].
5. The child spend make up time with the Mother as follows:
(a) From Saturday 9:00am to 5:00pm on the following dates:
(i) 29 July 2023;
(ii) 5, 12, 19 and 26 August 2023;
(iii) 2 September 2023;
(iv) 11 and 18 November 2023;
(v) 2 December 2023.
(b)From Saturday 5 August 2023 at 10:00am to Sunday 6 August 2023 at 5:00pm;
(c)From Saturday 4 November 2023 at 10:00am to Sunday 5 November 2023 at 5:00pm.
6.Subject to these Orders, the Interim Parenting Orders made on 17 May 2023 remain in full force and effect.
THE COURT NOTES:
A.The Father’s accommodation while in [Country B] will be his brother’s address at [C Street, City D, Country B].
B.The Father’s contact numbers for telephone/facetime/WhatsApp communication while in [Country B] are his number, […] and his brother’s number, […].
The Mother’s case is that there is a real risk of the Father not returning. She says that she understands from what she has been told by members of the Country B community, that the Father in fact plans to remain in Country B because he has family there. The gist of the Mother’s case is that notwithstanding that Country B is a Hague Convention country, that the Father over-holding X in Country B would be seriously detrimental to X and interfere with the arrangement or progress of her relationship with X. I note that the Father’s orders that he seeks in his outline of case provide for additional or what is called make-up time for X and the Mother upon the return.
Australian Government Travel Advisory
I also have in evidence before me marked Court’s exhibit 1, which is the Australian Government advisory in regard to travel to Country B, and it is advised to:
·Exercise a high degree of caution in Country B overall due to the high threat of terrorist attack. Higher levels apply;
·The latest update being 26 May 2-23; and
·The latest advice includes advice includes, “We’ve reviewed our travel advice for Country B. We now advise exercise a high degree of caution in the following provinces.” Thereafter, 10 different provinces of Country B are named.
It is common ground that Region H, where the Father seeks to travel to, on the Region J, is not in any of those designated provinces. The province where the Mother’s family is, which the Mother visits when she goes to Country B, is Region K, which is one of those provinces for which caution is advised.
The Mother’s case does not rest in any way on the risk to X of harm in Country B from either terrorism or being nearby, from an Australian perspective, the war in Ukraine. The Mother’s case rests entirely on the risk of X not returning and the interruption of X’s education. It is significant that the Mother raises the risk of X’s education when she has herself in relatively recent times taken X out of school to travel to Country B. Nonetheless, she makes that criticism or makes that point, and I must deal with that point on its merits.
I apply the whole of the provisions of Part VII, which rest on the principle that the orders I make in regard to X must regard her interests as the paramount consideration. I am particularly guided by section 60CC(3)(g):
60CC How a court determines what is in a child's best interests
Determining child's best interests
…
(3) Additional considerations are:
…
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
…
[Emphasis added]
I am to take into account, pursuant to that section, the culture and traditions of X and of each of her parents.
It is the Father’s case that the immersion in the culture and language of Country B by living with relatives in Region H for roughly two months will be of significant advantage for her knowledge and experience and acquisition of culture and tradition. I am satisfied that the advantage of the education in the culture and tradition of Country B, and indeed of simply another culture other than Australia, is of itself of very significant educational benefit to X and outweighs the disadvantage of missing some of conventional Australian primary schooling in her existing primary school.
I am satisfied that the orders sought by the Father are in X’s best interests. I regard the risk of him not returning as small, not non-existent, as he asserts, but the benefits to X of his proposal significantly outweigh the very small risk of the father not returning.
I regard the proposition that he would put at risk his permanent accommodation in Australia, albeit it is rented and, I note, recently renewed on a 12-month lease on or about April of this year, and his only income, being supporting parents benefit and family tax benefit A and B, at risk by not returning X to Australia as being very small. I am also satisfied, to the extent that I can be on this interim hearing, that he genuinely has X’s best interests and welfare at heart and, as he says, he regards Australia as his home. It is also clear that Australia is X’s home. For X to commence living in Country B as a 10-year-old would not be an easy thing, in any event.
In all of those circumstances, I am satisfied that the orders he seeks in regard to travel should be made, and I will make those orders.
The further matter is the substantive proceedings are next listed for mention on 4 October 2023. The Father will be in Country B with X at that time. I have communicated with a Judicial Registrar to find an alternate date in the event that I did determine that the Father could travel, which I have, and what is available with a Judicial Registrar is 8 November 2023 at 2pm. It appears sensible to me that we move to that date.
The form of the application and affidavit made by the solicitor for the Father is in a textbook form, given the matters that it covers, and I am grateful to the Father’s solicitor for that.
Had the Mother had the capacity for a costs order to be considered, I may well have considered it, as I regarded the application as being one that should have been readily agreed to. However, that is complicated in this case because of the extent that I do not know about the mother’s mental health issues, which may have impeded her making that decision. But otherwise, if there was a capacity to pay, I would have contemplated a costs order in the circumstances, but I will not make any order for costs.
Those are my reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 8 August 2023
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