Bray and Constable

[2013] FamCA 432

FAMILY COURT OF AUSTRALIA

BRAY & CONSTABLE [2013] FamCA 432

FAMILY LAW – CHILDREN – Application by the father to take the child on a holiday overseas in the July 2013 school holidays – where the mother opposes the application – where a previous application by the father to take the child on a holiday overseas was dismissed by a Federal Circuit Court Judge – best interests – consideration of family report – where the family report writer supports the holiday – where the father is willing to provide security of $100,000.00 – orders made allowing the father to take the child on the requested holiday with the father to provide security in the amount of $100,000.00.

Family Law Act 1975 (Cth) s 60CC, 64B

Line & Line (1997) FLC-92-729

APPLICANT: Mr Bray

RESPONDENT: Ms Constable

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3301 of 2007

DATE DELIVERED: 13 June 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman, SC

SOLICITOR FOR THE APPLICANT: Barnes, Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Winter

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. Paragraph 12(b) of the Orders made on the 7 October 2008 with respect to the child X, (“the child”) born on … March 2000 being removed from Australia are suspended to the extent necessary for the following orders to take effect.

2. The father shall do all things necessary forthwith to obtain a copy of a notarised Birth Certificate and apply for an Australian Passport for the child on a priority basis UPON NOTING the father shall pay all expenses of and in relation to the acquisition of the notarised copy of the child’s Birth Certificate and an Australian Passport for the child and the father shall provide all necessary documents to the mother for her signature through her solicitors.

3. The mother sign all such documents and return the same to the father’s solicitors within twenty-four [24] hours of any request for such signatures.

4. Within seven [7] days from this date the father do provide security in the amount of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] such sum to be held in an interest bearing account in the name of the solicitors for the mother refundable to the father on the return of the child to the mother’s care in Adelaide in the State of South Australia not later than 25 July 2013.

5. In the event that the father fails to return the child to the care of the mother in Adelaide in the State of South Australia pursuant to these orders by 25 July 2013 then the mother shall have leave forthwith to apply to the Court for the release of funds from security to cover all necessary costs and expenses of the mother relating to the return of the child to Australia pursuant to these orders.

6. The father shall forthwith and in any event not less than seven [7] days before the departure of the child from Australia provide to the mother a complete itinerary including all flight details, departures and arrival dates and times, together with full copies of the child’s travel itinerary and tickets.

7. Upon compliance with the above orders the father shall be permitted to travel with the child from Australia to the United Arab Emirates during the period Saturday 29 June 2013 until Saturday 20 July 2013 SAVE AND EXCEPT (for any flight delays outside of the control of the father) PROVIDED THAT the child is at all times escorted by and in the company of the father.

8. Within forty-eight [48] hours of return to Australia the father shall return the child’s passport to the mother who shall retain the same until further order.

9. Upon the return of the child to the care of the mother in Adelaide in the State of South Australia on 20 July 2013 the orders in relation to the child spending time with the father be suspended until such time as is necessary to ensure that the child spends at least two [2] weeks in the care of the mother prior to the child’s further attendance upon Ms BB and that the child’s further attendance upon Ms BB takes place only whilst the child is in the care of the mother.

10. The Independent Children’s Lawyer to take such steps as may be necessary to assist the parties in obtaining an appointment with Ms BB for the child and the parties approximately two [2] weeks after the return of the child to the care of the mother.

11. The father shall do all things and take all steps necessary to encourage and ensure that the child returns to Australia in accordance with these orders.

12. The father take all steps to ensure that the child communicates with the mother by Skype or telephone at least once each week during the child’s absence overseas.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3301 of 2007

Mr Bray

Applicant

And

Ms Constable

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed on 22 May 2013 the father Mr Bray (“the father”) sought urgent interim orders permitting him to travel with the child X (“the child”) born in March 2000 to the United Arab Emirates (“UAE”) in the approaching July 2013 school holidays.  He sought associated orders requiring the mother to obtain notarised Birth Certificate and passports for the child to permit this travel.  The mother Ms Constable opposed the orders.

Hearing

1. This was an interim application that was heard on the basis of the documents on file.  Mr Berman, SC appeared for the applicant father, Mr Bowler appeared for the respondent mother and Mr Winter appeared as the Independent Children’s Lawyer for the child X.

2. I heard submissions of all counsel and reserved judgment.

Relevant background

1. The child was born in March 2000.  He is therefore aged 13.  His parents separated in 2006.  Proceedings were first commenced in the Federal Magistrates Court (as it then was) in 2007.  There have been a variety of orders made, some by consent, in relation to the parenting arrangements for the child.

2. A summary of the history of the proceedings is set out in the judgment of Federal Magistrate Kelly (as she then was) delivered on 16 December 2011.  This was a judgment in relation to an application in 2011 by the father for permission to take the child to the UAE and to discharge the Consent Order which provided for each party being restrained from removing the child from Australia without the prior written consent of the other parent.

3. Prior to the mother becoming aware of the father residing and working in the UAE, the child was living on a week about basis with each parent from term 2 in 2009.  When the mother found out that the father was not residing permanently in Australia, she commenced contravention proceedings which were later discontinued.  An arrangement then took place where upon the week about shared parenting arrangement was suspended and arrangements were made for the child to spend time with his father for one week in every four during school terms and for three weeks during the Christmas school holidays.

4. At the hearing before Federal Magistrate Kelly (as she then was) in August 2011, she received written affidavit evidence and oral evidence of the parties.  For the reasons given by Federal Magistrate Kelly (as she then was) the application for the father to take the child to the UAE was dismissed.

5. Subsequently, the father has brought proceedings in the Federal Magistrates Court (as it then was) seeking orders that provided for the child to reside with him in the UAE.  As a result an order was made for a report to be prepared by way of a family assessment to be undertaken by Ms BB and the proceedings transferred to the Family Court of Australia (see the Order of 6 November 2012).

6. On 2 April 2013, Registrar Paxton referred the final orders proceedings to the list of matters awaiting trial allocation.

7. Following upon interviews with the child, the parties and other relevant persons, Ms BB completed her report dated 2 April 2013 which is annexed to the affidavit of the Independent Children’s Lawyer which was filed on 11 April 2013.

8. It is clear from the report of Ms BB that the child was aware of the ongoing litigation between his parents about his care.  The detailed report supports the orders sought by the father on a final basis.  The mother does not accept the accuracy or validity of the conclusions reached by Ms BB in her report.  Counsel for the mother referred to serious issues which would be raised about the conclusions which were reached and the method of conducting the interviews.

9. On page 23 to 24 of that report Ms BB deals with the proposed future arrangements suggested by the father for the child’s care and the move to the UAE.  At the bottom of page 23 it states:

   Given his level of maturity, reports of experiences consistent with emotional abuse in his mother’s care and resultant mental health difficulties, [the child] requires an opportunity to experience living with his father.  While [the child] had no concerns about relocation, reporting that he would manage the required changes (new school, moving away from friends, cultural differences) because he will be happy to be with his father, relocation overseas is a significant life change.  He requires an opportunity to experience the lifestyle in the UAE, including his father’s living arrangements, exploring school options and cultural differences via an extended holiday.  It is suggested that this occurs soon, e.g. during the 3 week holiday period in July.  This would provide [the child] something to look forward to and thereby feel more hopeful.  This will require [the father] meet any requirements of the Court to ensure [the child]’s return following the holiday.  On his return it is suggested [the child] attend for a review to discuss his experiences and preferences regarding living arrangements …

10. Following that report, the Independent Children’s Lawyer sent a letter dated 17 April 2013 to the father’s solicitors which included:

    I also refer to the recently released report of [Ms BB] Psychologist. 

    I write to indicate that I am supportive of [Ms BB]’s recommendation.  In particular, that [the child] experience the lifestyle of the UAE during the three week school holiday period of July 2013. 

    Thereafter, on his return, [the child] should attend upon [Ms BB] for an updated report on the experiences of the holiday and preferences regarding future living arrangements.

    Of concern to the mother may be the fact that the UAE is not a signatory to the Hague Convention.  Perhaps the father should deposit a substantial financial security to ensure the return of the child after the three week stay.

11. Thereafter on 24 April 2013, the father’s solicitors wrote to the mother’s solicitors suggesting that the child travel with the father in the July school holidays and proposing that the mother arrange for the Birth Certificate to be notarised in Adelaide, that she obtain the passport for the child and provide them to the father’s solicitors.  In that letter the solicitor also indicated that the father was willing to deposit “a financial security in the amount of $100,000 to ensure the return of [the child] after his three week trip to Abu Dhabi”.  By letter of 8 May 2013, the mother’s solicitors indicated that they did not accept the recommendations of Ms BB and would not agree to the child’s travel or the passport arrangements.

12. On 22 May 2013 the father filed the Application in a Case which is currently before me which seeks the following orders:

    1.That this matter be listed as a matter of urgency and on or before Monday 3 June 2013.

    2.That paragraph 12. (b) of the Orders of 7 October 2008 be varied to include “or by further Order of the Court”.

    3.That the mother and father do all things and sign all documents necessary to facilitate the child of the marriage namely [X] born on … March 2010 (sic) (hereinafter referred to as “[the child]”) to travel to the United Arab Emirates for the period of three (3) weeks from Saturday 29 June 2013 until Saturday 20 July 2013.

    4.That the mother do all things and sign all documents necessary to facilitate [the child] travelling to the United Arab Emirates, as provided for at paragraph 2 aforesaid, including but not limited to the following:

    4.1Forthwith arranging for a copy of [the child]’s Birth Certificate to be notarised in Adelaide;  and

    4.2Forthwith obtaining a Passport for [the child] on a priority basis;  and

    4.3Providing a notarised copy of [the child]’s Birth Certificate and his Passport to the father’s solicitors immediately upon receipt of the same and before the close of business on Friday 14 June 2013.

    5.That the father pay all expenses associated with [the child] travelling to and from the United Arab Emirates, together with all expenses incurred by the mother upon presentation of a receipt, to obtain a notarized (sic) copy of [the child]’s birth certificate and a passport for [the child] on a priority basis, pursuant to paragraph 3 aforesaid.

    6.That the father pay a financial security to the Court in the amount of $100,000.00, payable to the mother in the event that the child is not returned to her care by the father on or before Saturday 20 July 2013, subject to any delay outside the normal control the father including but not limited to flight delays, and repayable to the father upon [the child]’s return to Adelaide on Saturday 20 July 2013.

    7.That the mother facilitate the attendance of [the child] on [Ms BB] for an Updated Report, on Tuesday 23 July 2013 at 9.30 am.

    8.That the mother pay the father’s costs of and incidental to this Application in a Case.

13. It was not possible to list the Application in a Case before Monday 3 June 2013.  It was listed for hearing before me as an interim matter in the 9.15 am lists of 6 June 2013.

14. At the hearing before me on 6 June 2013, the mother filed a Response seeking that the father’s application be dismissed and seeking orders that the child be “psychiatrically examined by a child and adolescent psychiatrist if recommended by [Ms T], and for him to attend upon such appointments as may be recommended by his said psychiatrist”.  The mother sought that the father pay her costs.

15. The mother also filed an affidavit in which she set out her opposition to the father’s proposed trip to UAE with the child.

16. In 2012, the child commenced a series of therapeutic sessions with Clinical Psychologist, Ms T.  He has also had the assistance of his school counsellor.  In the Family Consultant’s report dated 2 April 2013, Ms BB refers to her interviews with the parties and the child and her observations of their time with the child.  These all occurred in February 2013.  Ms BB also undertook consultations with Ms T and Ms JJ, the School Counsellor.

17. As previously indicated the mother does not accept the opinions of Ms BB.  She will be maintaining that the report is seriously flawed for several reasons.

18. One of the significant matters to be determined when the matter proceeds to trial is the validity of the child’s allegation that his mother tried to “choke” or “strangle” him.  The mother strenuously denies any such action, or any harm to the child.

19. It does appear from the reports of Ms T and Ms BB (which to a certain extent is supported by the information provided by the school counsellor to Ms BB) that the child has recently experienced a “problematic relationship” with his mother (page 21 of Ms BB’s report).  Ms BB indicated:

    While the veracity of the parents’ respective allegations require a judicial opinion, [the child]’s mental health (anxiety, depressed mood and low self-esteem) presents considerable concern.  [The child] has been subject to long term conflict and hostility between his parents, which has likely contributed to his anxiety and vulnerability.  … (Page 21 of Ms BB’s report).

20. Since the separation and divorce of the parties, the father has remarried.  He married his current wife in December 2008.  They have one child, Y, who was born in June 2011.  It appears from the evidence before the Court that his current wife and child join him when he resides in the UAE.  When I raised the question with counsel for the father at the hearing on 6 June 2013, Mr Berman, SC obtained instructions and informed the Court that the father’s present wife had inherited monies which would now allow her to provide the $100,000, the husband was proposing as security.

Father’s proposals and submissions on his behalf

1. The father proposed that he be given orders in terms of the Application in a Case as previously set out and filed on 22 May 2013.  His affidavit filed on that day referred to the report from Ms BB dated 2 April 2013 and correspondence between the solicitors.

2. The affidavit set out the father’s proposal to travel with the child to UAE on the Saturday 29 June 2013 and returning with him to Adelaide on Saturday 20 July 2013.  The affidavit refers to:

   …I am currently in the process of making arrangements for [the child] and me to investigate the grounds of a number of schools in the United Arab Emirates and for us to meet with a staff member at each of the schools if possible, for a guided tour;  (Paragraph 9.1)

3. The father then suggested that on the Tuesday, immediately after his return, that the child meet with Ms BB again to discuss his preferences.  He then referred to the proposal of paying for all of the costs of the necessary documents and his willingness to provide security of $100,000.  There was limited amount of information about the specific details of proposed flights or activities in UAE.

4. Counsel for the father stressed the benefits for the child of the proposed travel and the significant concerns about the child’s mental health and other difficulties, making particular reference to the conclusions of Ms BB and the statements made by the child to Ms BB during his interview.

Mother’s proposal and submissions on her behalf

1. The mother strenuously opposed the orders sought by the father.  Her affidavit filed on 6 June 2013 referred to the decision of Federal Magistrate Kelly (as she then was) in January 2012. 

2. The mother maintained in paragraph 5 of her affidavit:

   5.The husband’s refusal to provide comprehensive information about his occupation, the secrecy surrounding his role with the UAE government and his inability to explain the true nature of his duties continue to alarm me.

3. The mother alleged that the child would not be safe in the UAE because of the suspicion she had that the husband was involved in espionage.  She also expressed concern about the UAE not being a party to the Hague Convention and information she had obtained from the child which suggested that the father had recently worked in Afghanistan, Northern Africa, Pakistan and Egypt (paragraph 6 of the wife’s affidavit).  She expressed concern that the report of Ms BB did not refer to the judgment of Federal Magistrate Kelly (as she then was).

4. In her affidavit the mother maintained that the child is “happy, settled and well-adjusted child in my care.  He is openly affectionate towards me and shows no signs of being disturbed, upset, afraid or other than content in his current environment.”  This is in contrast to the statements the child made to the mother in the presence of Ms BB as set out in the report.

5. In the latter part of her affidavit the mother referred to her belief that the trip to the UAE was:

   …further designed to influence [the child] and undermine my relationship with him.  The husband has already tried to entice [the child] to live with him by taking him on helicopter rides and lavishing him with attention, gifts, watches and five star hotel accommodation during his visits. (Paragraph 21 of wife’s affidavit)

1. At the hearing before me on 6 June 2013, counsel for the mother referred in detail to the decision of Federal Magistrate Kelly (as she then was) and in particular the parts of that judgment which are critical of the father and do not support the father’s current application.

2. In her judgment Federal Magistrate Kelly (as she then was) refers to the “poisonous relationship of mistrust between the parties” (paragraph 64). 

3. In paragraph 59 of the judgment, Federal Magistrate Kelly (as she then was) says:

   I am satisfied that the father did not inform the mother that he was moving to live overseas  before commencing these proceedings on 8 October 2010.

4. At paragraphs 65 to 70 of the judgment of Federal Magistrate Kelly (as she then was) as follows:

   65.The father was cross examined about his past and present employment in the UAE.   He was understandably reluctant to provide copies of his current employment contract, until specific orders assuring confidentiality were made.  His current contract for employment is as a “[Trainer]” with [Company G].  This contract was forwarded to the father in January 2010 and presumably signed shortly thereafter. 

   66.Previously he was employed by a company called [Company S] in 2009.  Both positions entitled [the father] to obtain a Residence Visa in the UAE.  [The father] was unable to explain why the visa issued in 2008 listed him as a “[salesperson]” sponsored by “[Company D]”, nor could he explain why his 2010 Visa listed him as [a] “[tradesman]”, rather than [a] “[trainer]”. 

   67.[The father] appeared unconcerned about these errors.  I might have accepted the father’s evidence on this topic if there was only one such error, but both Visa entries are materially incorrect.  The father’s evidence is in sharp contrast with his general presentation as someone who is precise and careful.  It seems inexplicable to me that an intelligent person such as [the father], from a military background where protocol and procedure are vitally important, would not be concerned that his entry Visa to the UAE was inaccurate. 

   The father’s future plans

   68.[The father]’s affidavit was silent about how long he envisaged living and working in the UAE. It was only in the witness box that he disclosed any detail about his future plans.  He subsequently gave evidence about that issue, together with evidence about a range of other relevant topics that Counsel conceded should have been dealt with in his affidavit, such as his family connections here in Australia.

   69.The Court heard that the father anticipated remaining in the UAE for another 5 years, until 2016. [The father] gave evidence that his wife was keen for [Y] to attend [a specific school in Sydney] which presumably means the family may decide to live in Sydney upon their return.  He gave evidence about his future political ambitions, as a further indication that he would not risk his reputation by breaching an order for [the child]’s return.

   70.I accept the father’s evidence on these topics and that he intends to return to live in Australia at some stage.  However, I cannot draw any conclusion from this evidence relating to [the father]’s future response in the event [the child] was reluctant to leave his care and return to Australia, or in the event the father became concerned about [the child]’s safety or welfare in the care of [the mother].

5. The conclusions of the judgment were set out in paragraphs 76 to 81 as follows:

   76.In determining this matter I consider that the father’s hostility toward the mother and his concerns regarding [the child]’s safety in her care could well provide a strong motive not to return [the child] in the future. The mother would have very few legal options open to her, should this occur.

   77.I do not consider the father has deliberately set out to dupe or mislead the Court in his evidence.  However, he has previously demonstrated a willingness to mislead the mother about major issues affecting the care of their child and his evidence on certain other topics was unconvincing. 

   78.I am not satisfied that the father’s current determination to return [the child] would prevail in circumstances where he may genuinely believe his son was at risk in the mother’s care.  Given the father’s general attitude towards [the mother], it may not take very much by way of complaint from [the child] for [the father] to decide that [the child]’s physical or emotional safety could only be guaranteed if the child remained in his care, in Abu Dhabi.

   79.[The mother] would experience a high level of stress and anxiety around any such overseas travel for [the child].  This would invariably impact upon her present role as [the child]’s primary caregiver.  The mother believes that the father is sufficiently manipulative that he may indeed return [the child] from any initial overseas trip before eventually failing to comply with the orders.  Whether her belief is justified or rational, it is certainly a genuine fear that she holds.  That is to say, she would continue to experience the same level of anxiety around each and every trip that [the child] may undertake.

   80.The father is unable to provide any surety or financial security for [the child]’s safe return.  While [the father] has strong family ties in Australia, his own family life is now based in the UAE, and will continue to be based there for the next five years. 

   81.I am not satisfied that it is in [the child]’s best interests overall that the existing injunction should be discharged, in light of the above discussion. In the circumstances I dismiss the father’s application for [the child] to travel with him outside the Commonwealth of Australia.  I make final orders as set out at the commencement of these reasons.

6. Counsel for the mother relied strongly upon the earlier decision and maintained that there had been no significant changes which would justify discharging the injunctions preventing the removal of the child.

Submissions of the Independent Children’s Lawyer

1. As set out in the correspondence to the father’s solicitors the Independent Children’s Lawyer maintains his support for the proposed holiday in UAE.  The Independent Children’s Lawyer relied primarily upon the report of Ms BB.

The Law

1. The injunction which was granted by consent restraining the parties from removing the child from Australia is an aspect of the care and welfare of the child and is therefore a parenting order.  (Section 64B).

2. The Court is required when making a parenting order to consider the best interests of the child as the paramount consideration.  Section 60CC sets out the factors which the Court must apply in determining the child’s best interests.

3. The mother’s case clearly refers to the risk of the child not being returned to Australia.  In the Full Court decision of Line & Line (1997) FLC-92-729 the Court referred to the factors which are to be considered when carrying out an assessment of the risk of the child not being returned.

4. The Full Court judgment (Murray, Lindenmayer and Kay JJ) at paragraphs 4.49, 4.50 and 4.51 it says:

   4.49The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return.  In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and friends and/or personal friends there).

   4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October, 1980 (“the Convention”).  However, in considering and deciding what weight to give to this factor, 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 then travelling on to a non-convention country.

   4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context 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 children flowing from any hardship experienced by the relevant parent would also come into consideration.

5. These factors were usefully summarised in previous judgments of this Court (and the judgment of FM Kelly (as she then was)) in the following terms:

   (a)The existence or otherwise of continuing ties between the “departing parent” and Australia, (such as the ownership of real estate, the existence of any business interests, or the residence of close family or friends in Australia);

   (b)The existence and strength of possible motives not to return (including the level of conflict between the parents particularly over child-related issues);

(c)The existence and strength of possible motives to remain in the other nominated country (such as ownership of real estate, the distance of business interests or the residence of close family and/or personal friends in other countries);

(d)Whether the country of proposed travel is a signatory to the Hague Abduction Convention.

1. These principles however do not override the best interests of the child which requires consideration to be given to all of the factors set out in section 60CC.

2. In particular, the provisions of section 60CC (2A) require that “the Court is to give greater weight to the consideration set out in paragraph 2(b).”  Paragraph 2(b) refers to the quote “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

Findings and discussion

1. At this interim hearing, without the benefit of having the evidence currently before the Court appropriately tested, the decision must be made upon the basis of the evidence which is considered reliable.

2. The Court must treat the best interests of the child as the paramount consideration. 

3. The primary considerations include:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The proposed holiday for three weeks in UAE would not have any significant bearing upon the child’s meaningful relationship with either of the parents, provided the child is returned to Australia.  It is the risk of the chid not returning to Australia which is most significant.

2. The question of the risk of the child not being returned is dealt with subsequently.

(b)the need to protect the child from physical or psychological harm and being subjected, or exposed to, abuse, neglect or family violence

1. The father relies upon Ms BB’s report.  The mother disputes the factors concerning her alleged physical abuse to the child or psychological harm to the child as set out in Ms BB’s report.  I therefore cannot rely upon the material relating to these allegations in Ms BB’s report or the father’s documents to support any overseas travel.

2. It is clear however that the child has suffered considerably as a result of the ongoing conflict between his parents and their inability to carry out their responsibilities to agree upon appropriate parenting arrangements for the child.

3. The mother makes allegations that the child may well be at risk in the care of the father in the UAE because of the father’s employment, or because he will not be present to protect the child.  Apart from the mother’s expressed concern there is no evidence to support the mother’s concerns.  The father maintains that he currently resides in a gated community with his present wife and young child.  This supports the conclusion that the father will take all necessary steps to ensure that the child is not placed at any risk whilst on holiday with him.

4. The factors to be considered when weighing up the risk of the child not returning to Australia include the existence of continuing ties between the father and Australia.  Both the father and his current partner are Australian Citizens.  However, the father moved to take up employment in the UAE because of what he claims to be an inability to find employment in Australia.  This is a factor which supports the mother’s concern about the risk of not returning.

5. Similarly, the ongoing level of conflict between the parents concerning the child related issues is another factor which lends support to the mother’s concerns about the risk of the child not being returned.

6. Set against this, however, is the fact that the father only has contract employment in the UAE.

7. Section 60CC (3)(a) additional considerations:

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. The evidence in Ms BB’s report suggests that the child wishes to reside in the UAE with the father.  The basis upon which he has formed this view is however not clear.  The mother does not accept that his views have not been influenced by the father.  At 13 years old, the child is of an age when his views would normally carry significant weight.  The difficulty in this matter is however the history of the parents’ behaviour and the dispute about the causes of the child’s difficulties.

(b)      the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

1. The parties have strong and different views about the nature of the relationship with the child.  The mother maintains a healthy relationship with the child and denies any abuse.  The father relies upon Ms BB’s report which suggests that there are serious difficulties in the relationship between the child and the mother.

(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

1. This is not a significant factor in relation to the current proposal for a three week holiday with the child.  The father has in the past regularly been able to communicate with the child whilst in the mother’s care and has taken the opportunity to spend time with the child when he returns from the UAE on a regular basis.  I note the finding of Federal Magistrate Kelly (as she then was) that the father failed to inform the mother of his employment in and move to the UAE until some time had passed.

(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. Not significant in this particular matter.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. If the child was not returned to the care of the mother in Australia this would have a very significant effect upon the child’s relationship with the mother.  A three week holiday as planned, however, is not likely to have a significant affect upon the child’s circumstances, particularly if the child is given the opportunity and takes up the opportunity, to communicate with his mother during this period.  Such communication could be maintained by Skype or telephone.  It would be the father’s responsibility to ensure that the child took up all appropriate opportunities to communicate with his mother whilst on holiday.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This factor is only relevant when the consideration is given to the risk of the father failing to return the child to the mother’s care in Australia.  It would be of considerable practical difficulty and expense if the father failed to comply with the requirements to return the child to the mother’s care.  This would substantially affect the child’s right to maintain a personal relationship and direct contact with the mother.

(f)       the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

and

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The difficulties in coming to any conclusion in relation to these two factors are raised by the dispute concerning the opinions of Ms BB.  Both parents have in the past shown a capacity to provide for the needs of the child in the sense of day to day needs and physical needs.  Their attitude towards the child and the responsibilities of parenthood, are matters which will be determined on a final basis when all of the evidence has been tested.  On the present evidence, however, the mother raises serious concerns about the father’s capacity to encourage an ongoing relationship between the child and the mother and there are concerns about the mother’s capacity to provide for the child’s emotional and psychological needs.  The ongoing conflict between the parents may well be a significant contributor to the child’s emotional and psychological difficulties.

(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;

1. The lifestyle of the father and his family in UAE is likely to be substantially different from the child’s lifestyle in his mother’s care in Australia.  There is however no indication that such a lifestyle would be detrimental to the child save and except the mother’s allegations that the father will attempt to influence the child with lavish attention during the holiday.  (Paragraph 21 of the mother’s affidavit document 99).

2. Subparagraphs (h), (j) and (k) are not relevant to the present decision.

3. The Court notes that the UAE is not a signatory to the Hague Abduction Convention.

4. The father now offers $100,000 to be held as security for the return of the child.  This is a significant sum which in terms of the decision of Line & Line (Supra) is likely to be sufficient to entice the father to return the child and also “adequately provides for the mother to take action to endeavour to obtain the child from overseas.”

5. One of the factors to be considered in this matter is also the reaction of the 13 year old child to his mother and the impact it would have upon his relationship with his mother if he learns that the father has been prevented from taking him on a holiday to UAE.

1. The proposal of the father reflects the suggestions made by Ms BB in her report, that the child be given the opportunity to travel to the UAE and at the same time with his father be given an opportunity to assess possible education prospects in UAE.  Any final decision will take into account the influence upon the child of the holiday.

2. The father must ensure that even if the child does complain about his mother’s behaviour or expresses a desire to remain with the father the child is returned to the care of the mother in Australia.  Any decision made about any change to the arrangements is to be made by the Family Court of Australia in Adelaide after the return of the child to Adelaide.

Conclusion

1. Whilst there are clearly some factors which would form the basis of an appropriate concern by the mother, I am satisfied that in balancing all of the factors it is in the child’s best interest for him to enjoy a short holiday with the father in the UAE provided that the father complies with the conditions to ensure the prompt return of the child to the care of the mother in Australia.

2. The proposal that immediately upon his return the child attend upon Ms BB again is not in the child’s best interest.  It would be in the child’s best interest to attend upon Ms BB following his return to Australia but after he has remained in the care of the mother for at least two weeks and is taken to his interview by the mother before any further time is spent with the father.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 June 2013.

Associate: 

Date:  13 June 2013