Baboor and Reema

[2019] FamCA 698

FAMILY COURT OF AUSTRALIA

BABOOR & REEMA [2019] FamCA 698

FAMILY LAW – CHILDREN – Interim parenting – Where the mother seeks orders to allow the child to travel overseas – Where the child currently spends no time with the father pursuant to interim orders – Where the degree of risk of the child not being returned to Australia is assessed – Where best interests of the child considered – Orders made permitting the proposed travel.

Family Law Act 1975 (Cth) ss 64B, 65Y, 65Z

DeLuca & Farnham [2019] FamCAFC 100
Line & Line [1997] FLC 92-729

APPLICANT: Ms Baboor

RESPONDENT: Mr Reema

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 1995 of 2018

DATE DELIVERED: 30 September 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barnett

SOLICITOR FOR THE APPLICANT: Walter and Elliott Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr S Schonell

SOLICITOR FOR THE RESPONDENT: O’Sullivan Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Pending Further Order

1. That the Mother be permitted to travel to Country B with the child, X born … 2015, for a period of five weeks, departing Australia no earlier than 27 November 2019 and returning to Australia no later than 5 January 2020.

2. That the Court requests that the Australian Federal Police remove the name of the child X born … 2015 from the Family Law Watchlist at all points of international arrivals and departures in Australia for the purposes of the Mother travelling to Country B pursuant to Order 1.

3. That this Order acts as an authority for the Mother to do all acts and things and sign all documents necessary to enable X to apply for and obtain a Tourist Visa for Country B.

4. The Mother will deposit a bond in the sum of $15,000.00 AUD by bank cheque payable to the Registrar at the Family Court, Parramatta before close of business on 13 November 2019.

5. Upon the Mother’s return to the Commonwealth of Australia in accordance with these Orders with the child, both parties shall do all things necessary, including signing all documents to have the funds referred to in Order 4 returned to the Mother within five business days of her return.   

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baboor & Reema has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1995 of 2018

Ms Baboor

Applicant

And

Mr Reema

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are engaged in proceedings concerning a settlement of their property and the parenting arrangements for their four year old daughter (“the child”) following the breakdown of their seven year marriage. 

2. The mother wishes to take the child for a five week trip to visit elderly relatives and attend two family weddings in her home country.  The father does not consent to the child leaving Australia while parenting proceedings are pending and accordingly the mother seeks an order of the court permitting her to do so. 

3. The order sought by the mother is in the nature of a parenting order to be determined with the child’s best interests as the paramount but not sole consideration. 

4. The father asserts that there is a real risk that the child will not be returned to Australia.

5. The Independent Children’s Lawyer (“ICL”) recognises that a risk of non-return does exist but contends that it is not of such a magnitude that the orders sought by the mother ought to be refused. The mother and ICL also contend that it is in the best interests of the child for the order to be made as sought by the mother.

6. The questions for me to determine are the magnitude of the risk of non-return by the mother, whether a sum of cash should be deposited as security for the mother’s promise to return the child to Australia and whether it is in the child’s best interests for her to be taken overseas as the mother seeks.

Background

1. The mother who is 34 was born in an overseas country and moved to Australia in 2009. She is not an Australian citizen but holds permanent residency.

2. The father who shares the same ethnicity as the mother is 42. He was born in another overseas country and moved to Australia in 1994. He is an Australian citizen.

3. The parties commenced their relationship in 2009 and married in Australia in 2011.

4. The mother initially resided with the paternal grandparents in Sydney where she had found employment. The father initially remained living in another state but moved to Sydney in 2015.

5. In 2015 the child was born. The child is an Australian citizen.

6. In May 2018 the parties separated when the mother left the home of the paternal grandparents where the parties were then living with the child. She immediately attended a police station and made complaints to the police of the father’s violence. The following day an Apprehended Domestic Violence Order (“ADVO”) was made protecting the mother from the father.

7. The father immediately initiated parenting proceedings in the Federal Circuit Court which were then transferred to this Court a few weeks later. The father sought an interim order that the mother be restrained from removing the child from the country and that the child’s name be placed on the Family Law Watchlist.

8. The mother filed a Response to the father’s application in which she sought parenting and property orders.

9. In the property settlement proceedings the mother seeks orders which would see her receive up to about $700,000 or 70 per cent of the parties’ property. 

10. It is the mother’s contention that she was subjected to serious family violence during the marriage including being forced to engage in degrading conduct and being severely assaulted by the father, matters of which the mother contends the paternal grandparents were aware.  The father was charged with common assault and assault occasioning actual bodily harm in relation to some of these incidents but was acquitted of the charges following hearing. 

11. The child has had no contact with the father following separation.

12. In September 2018 the paternal grandparents were joined to the proceedings after filing a Reply in the proceedings seeking orders for time with the child. The paternal grandparents did not wish to be heard in this application.

13. In November 2018 following a defended interim hearing orders were made that the mother have sole parental responsibility for the child and that she spend no time with the father or paternal grandparents on an interim basis. 

14. In December 2018 a final ADVO was made for two years against the father for the protection of the mother.

15. The substantive proceedings are currently awaiting the allocation of trial dates.

16. On 12 April 2019 the mother filed an Application in a Case seeking permission to travel to her home country for five weeks for the purposes of visiting the child’s elderly great grandparents and to attend to the weddings of two cousins.

17. On 14 April 2019, the mother applied for Australian citizenship.

The law and discussion

1. Section 65Z of the Family Law Act 1975 (Cth) (“the Act”) provides that it is an offence if a person takes a child out of Australia while parenting proceeding are pending in the absence of the consent of the parties or an order of the court. Section 65Y creates an offence if a person takes or sends a child out of Australia when a parenting order is in place. An interim parenting order is in place with respect to the child and final parenting proceedings are pending. The father does not consent to the child leaving Australia as sought by the mother.

2. The mother seeks orders that she be permitted to travel to her home country with the child for a period of five weeks (within a stated period), that the child’s name be removed from the airport watch list for the purposes of that travel and that she be authorised to do all acts and things to sign all documents necessary to enable a tourist visa to be issued for the child.

3. Section 64B of the Act defines a parenting order as an order dealing with a number of specified matters including “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.” I am thus concerned in this application with the making of a parenting order and am to make such order as is proper having regard to the best interests of the child being the paramount consideration.

4. In accordance with Line & Line [1997] FLC 92-729 (“Line”) as affirmed by the Full Court in DeLuca & Farnham [2019] FamCAFC 100 (“De Luca”) I am also required to assess the degree of risk if any of the child not being returned to Australia and consider whether it is appropriate to require any security for the return of the child. 

5. The factors to be considered in an assessment of the risk of non-return of the child as set out in these authorities are:

   ·The existence or otherwise of continuing ties between the departing parent and Australia;

   ·The existence and strength of possible motives not to return;

   ·The existence and strength of possible motives to remain in the other nominated country; and

   ·Whether the country of travel is a signatory to the Hague Convention.

6. In relation to the last mentioned issue, the country in question is not a signatory to the Hague Convention.

7. In relation to the exercise of the discretion whether to permit the overseas travel, I must also consider the financial circumstances of both parties. As was said in Line and cited in DeLuca at [35] a relevant consideration is:

   The relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.

8. As these are interim proceedings I must determine the dispute on the basis of the agreed facts.

The continuing ties between the mother and Australia

1. The mother has been employed in a professional position with the same employer in Sydney since February 2013 and recently received a promotion. The mother is currently a permanent resident of Australia and has applied for Australian citizenship. When the mother is granted Australian citizenship she will be required to relinquish the citizenship from her country of birth as that government does not permit dual citizenship.  The mother also has a superannuation interest in Australia.

2. The child is an Australian citizen and requires a visa to travel to the foreign country.

3. Although the mother’s ties with Australia do not include the ownership of any real estate or business interests and the mother has no family members residing here in my view particular weight must be attached to the fact that the child is an Australia citizen who is unable to travel to the mother’s home country other than as a tourist by virtue of her Australia citizenship.

The existence and strength of possible motives not to return

1. It is the father’s case that there are a number of motives for the mother not to return to Australia.  It is first his contention that the mother has limited financial resources and cannot continue to fund her litigation in Australia.

2. I am of the view that this is not a weighty factor having regard to the mother’s likely entitlement to at least some of the net matrimonial asset pool and the prospect if she were to be successful of receiving a significant sum. 

3. It is also contended on behalf of the father that the mother must have some concern about the likelihood that she will not be believed in relation to her serious allegations about the father’s conduct. He says that this arises from the fact that to date the mother has been unsuccessful in making various complaints to a range of authorities including police. In my view, the delay by police in charging the father for assault (and his acquittal on those charges) and other matters related to the criminal investigation and ADVO proceedings do not support this contention. Dismissal of charges on the criminal standard does not amount to a rejection of the mother’s claims of the father’s violence in family law proceedings.

4. An assessment of the risk posed by the father, albeit on an interim basis without final findings, has been made by a court to date resulting in interim orders giving the mother sole parental responsibility for the child and providing for no contact with the father.  Further, although the father consented to an ADVO on a final basis without making admissions such an order is in place for the protection of the mother. It is also the case that the inaction of welfare authorities to respond to complaints made about the father’s conduct do not amount to a rejection of those complaints but is based on an assessment that the child is safe in the mother’s care. These matters in my view are more likely to reassure the mother about the capacity for the Australian judicial system to protect the child and herself from the alleged risks of harm posed by the father.

5. Further, in my view some weight must be attached to the mother’s contention that if she had a genuine intention to leave Australia and remain with the child in her home country she would not have immediately gone to police upon separation to report the father’s conduct. Rather the mother would more likely have departed immediately with the child for her home country as the child had at that time a valid visa to travel.

6. In other words the mother’s conduct at all times since separation is consistent with her intention that she wishes to return to Australia.

The existence and strength of possible motives to remain in the foreign country

1. It is the father’s contention that the mother comes from a family of significant wealth and high social connections in her home country.  However, I am not of the view that his evidence is “detailed and cogent” as is submitted on his behalf.  Rather, the father simply makes assertions to this effect without any objective evidence and these assertions are denied by the mother and maternal grandmother.

2. The father also contends that the mother had wanted to relocate to her home country for about two years prior to separation but this is also a matter strongly disputed by the mother, and is also unsupported by any objective evidence. 

Hague Convention

1. It is the father’s case that as the mother’s home country is not a signatory to the Hague Convention, he would face significant difficulties and costs in recovering the child in the event the mother did not return to Australia.

2. The mother has agreed to deposit $15,000 as security in the event that she does not return the child to Australia. 

3. As previously discussed, I am of the view that there is no objective evidence that the mother is a person of significant means. She is an employee and denies access to any financial resources other than her salary and has borrowed money from her parents to fund her legal proceedings.

4. There is also no objective evidence that the maternal grandparents are wealthy as asserted by the father but they are in a position to lend the mother $15,000 at most for the purposes of providing security.

5. I accept the mother’s evidence in relation to her income and her inability to deposit any sum greater than $15,000. If she were required to deposit a greater sum the mother would not be able to travel with the child which in my view would cause her significant hardship. It is equally true that the father may suffer hardship if insufficient security is provided as the costs for him associated with initiating proceedings in the foreign country where he is not a citizen may also be substantial.

6. Weighing each of the foregoing matters, I am of the view that although there is some risk that the mother will not return to Australia and will remain in her home country this is not a significant risk. The security that the mother is able to offer which is not insignificant in her circumstances, also supports her promise that she will return the child to Australia.

Best interests of the child

1. As touched upon earlier in these Reasons, as a parenting order is under consideration, the best interests of the child are paramount in determining the orders which are proper. 

2. Many of the matters which are to be considered when determining best interests of the child set out in s 60CC of the Act are not applicable in these circumstances but I will consider those matters which are relevant.

3. The child is currently not sharing a meaningful relationship with her father as greater weight was attached to the need to protect her from harm when contentions of the parties and undisputed facts were considered at the interim hearing.  As it is proposed that the child travel with the parent who holds sole parental responsibility for her and will not in these circumstances be deprived of contact with the father or his input in decision making, this primary consideration is not weighty.

4. The need to protect the child from harm is also well addressed in the interim orders so the second primary consideration is also not weighty in this application.

5. The purpose for which the mother intends travelling to her home country is to participate in two family weddings and to visit the child’s elderly and frail great grandparents.  The weddings of two of the mother’s cousins both of which are to be celebrated in December 2019 will follow the traditions of the mother’s culture and will be attended by extended family and friends of the mother.  The weddings are being held in the same month to enable the mother and the child to attend them both in the course of a single trip.  Both the mother and the child have important roles to play at each of the weddings due to their respective positions in each family.

6. In my view the child’s participation in important cultural events and spending time with important family members are weighty factors pertaining to the child’s relationship with her maternal family and the culture and heritage of her maternal side.

7. Family violence looms large in these proceedings.  As previously noted the mother makes serious allegations of physical violence perpetrated by the father against her to which the child was exposed and contends that he behaved in a controlling manner towards her throughout the marriage. In these circumstances I attach some weight to the contention that the father may be seen as attempting to exert control over the mother in refusing to consent to her taking the child to her home country especially if he may not hold genuine concerns about the child’s non return. 

8. In my view, there is some support for the contention that the father does not hold such genuine concerns and opposes the travel for other reasons. For example, he deposes to opposing the travel in part on the basis that the child has missed some opportunities to participate in paternal family weddings due to the mother’s actions in taking the child from him and refusing all contact when the parties first separated. In this regard, it may be seen that the father is denying the child having similar opportunities with her maternal family in response to the mother’s actions rather than due to genuine concern that she will retain the child overseas.

9. I consider it to be a relevant consideration that the child will receive a benefit from participating in significant cultural events and developing relationships with her elderly great grandparents as a result of the proposed travel. She will also in my view undoubtedly receive the flow-on benefit from her mother (who is her sole carer) if the mother is able to reconnect with her family and participate in these significant family events.

Conclusion

1. For the foregoing reasons, I am of the view that while there is some risk that the mother will not return the child to Australia, that risk is not significant having regard to the mother’s actions from the time she separated from the father up until the present. She did not opportunistically flee from Australia when she first separated even though she then had a valid visa for the child, and has a strong incentive to return to Australia given that her child is a citizen in this country. There are other incentives for the mother to return to Australia including employment, superannuation and the prospects of Australian citizenship.

2. Although there are also some incentives for the mother to remain in her own country including in particular her family ties, there is no evidence to suggest that the child has any entitlement as an Australian citizen to remain living in that foreign country.

3. The mother has stated an intention to return to Australia and will be required through orders to deposit a sum by way of security which is not insignificant for her. Although the father would be greatly disadvantaged if the mother did not return, I am satisfied that there is not a substantial risk that this will occur.

4. Having regard to the best interests considerations as outlined I am also satisfied that the travel will be beneficial for the child in circumstances where she is currently not spending any time with her father and will thus not be deprived of that contact. I am satisfied that the orders as proposed by the mother are proper and in the child’s best interests in the circumstances.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 September 2019.

Associate: 

Date: 30 September 2019.