C and N - [2003] FMCAfam 466

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & N

[2003] FMCAfam 466

CHILDREN – Whether husband be permitted to take the children to I to visit family – age of children – medical facilities in I – health of grandmother – not with primary carer for period of absence .

Family Law Act 1975, s.60B, s.65E, s.68F(2)

Line & Line (1997) FLC 92 – 729

Applicant:

F J C

Respondent:

R A N

File No:

MLM 4627 of 2003

Delivered on:

2 September 2003

Delivered at:

Melbourne

Hearing Date:

2 September 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Ms A O'Connell

Solicitors for the Applicant:

T J Mulvany & Co

Counsel for the Respondent:

Mr N M Eidelson

Solicitors for the Respondent:

Goddard Elliott

ORDERS

That the Husband be permitted to take the children KJSJC born 14 September 1998 and DGAC born 19 M 2001 out of the Commonwealth of Australia to M, I leaving Australia on 16 December 2003 and returning on 8 January 2004.
That the Wife deliver the passport for the child K to the Husband not later than 1 December 2003 and the Husband return the said passport to the Wife upon the said child’s return to Australia.
That the Wife forthwith sign all documents and give all consents to enable the child D to obtain a passport and I travel visa all at the expense of the Husband and on receipt the passport be delivered to the Wife and the Wife deliver the passport to the Husband not later than 1 December 2003 and the Husband return the said passport to the Wife upon the said child’s D return to Australia.
That the Wife forthwith provide the Husband with a photocopy of the child’s K’s passport and I travel visa and the same for the child D’s as soon as the passport is obtained.

(4A)That in order for the Husband to be able to obtain an air ticket for the said children the Wife deliver the passports of the children to the Husband at a time requested in writing not less than 7 days prior by the Husband and he return them not less than 48 hours thereafter.

That the Husband by 1 December 2003 pay the sum of $72,000.00 into the trust account of the Husband’s solicitor, to be held in trust on the following terms:
(a)to repay the amount to the Husband upon the children returning to Australia on or before 15 January 2004;
(b)in the event that the children are not returned to Australia by
15 January 2004 to be paid to the Wife.
That by 1 December 2003 the Husband provide in writing to the Wife:
(a)detailed travel itinerary including flight numbers and times;
(b)a telephone number for contact with the children whilst in I.
That the Wife at the expense of the Husband ensure that the children have all vaccinations as recommended for travel to I.
That the Husband ensure that the children whilst in I contact their Mother by telephone twice each week at the Husband’s expense.
That the Husband’s weekend contact otherwise be suspended from
8 January 2004 until 30 January 2004 and unless otherwise ordered then resume on the weekend commencing 6 February 2004.
That pursuant to s.62F(2) of The Family Law Act 1975 the parties confer with a Counsellor nominated by the Director of Court Counselling of this Registry of the Court to endeavour to resolve the differences between them.
That pursuant to s.39 of the Federal Magistrates Act 1999, all interim and final applications be transferred to the Family Court of Australia.

AND THE COURT NOTES

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 4627 of 2003

F J C

Applicant

And

R A N

Respondent

REASONS FOR JUDGMENT

This application concerns two children of the marriage KXSJC, born 14 September 1998 and DGAC, born 19 March 2001. The application was filed on 18 July 2003 by the husband.
By way of background, the husband was born in January 1962 in M, I. He is currently aged 41. He came to Australia in 1990 as a student where he met the wife. He was employed on commercial international shipping but ultimately he and the wife commenced cohabitation on 13 April 1996 and they married on 11 May 1996 in B and subsequently had another marriage ceremony in I. They separated on 31 January 2001.
The application which was filed is concerned with a variety of the arrangements for the children, what is to happen with contact in the future and where the older child K is to attend school next year. Included in the application is an order sought by the father that would permit him to take the children to M in I for three weeks over this Christmas period. The dates which are put by Ms O'Connell who appeared for him are departing Australia on 16 December 2003 and returning on 8 January 2004. The parties have lived together in M for a period when the older child K was two.
The position now is that the children reside with the wife and the husband has contact with them three weekends out of four for two nights, that is, from Friday through to Sunday. He has had a week at Easter this year, a week in December and 10 days or thereabouts in December 2001. He now proposes three weeks and two days.
The material before the court is the husband's application filed on 18 July 2003, two affidavits of the husband sworn on 4 July 2003 and 1 September 2003. The wife's response filed 28 August 2003, her affidavit sworn on 27 August 2003 and an information sheet.
The husband's mother, brother, sister, nieces and nephews, therefore cousins of the children, reside in M. He has other family here in Australia. He puts his application on the basis that he wishes his children to see his mother in particular. He put in his affidavit that she is very unwell and unable to travel to Australia. The level of her illness is perhaps overstated in his affidavit. Exhibited to the husband’s most recent affidavit is a medical certificate by Dr Dalal, a consultant cardiologist in a number of hospitals in B. It is handwritten and some of it is a little difficult to read but he does say:
“This is to certify that Mrs M. C has serious heart problems.”
She has a condition which it is impossible to decipher from the writing. He then concludes:
“She is well and stable on medical treatment at present. Her heart function may not improve.”
Another medical certificate or medical report was exhibited to his affidavit of 4 July 2003 and that was from Dr Lotlikar, a cardiologist. That reads:
“There is severe generalised hypokinesia of interventricular septum and left ventricular free wall with mild dilation of left atrium and left ventricle. Quantitated left ventriculation ejection fraction equals 24 per cent. There is evidence of diastolic dysfunction of left ventricle, decreased compliance type. There is mild functional mitral regurgitation. The above findings are indicative of dilated cardiomyopathy.”
Apart from what was said in the report of Dr Dalal, there is no commentary on the seriousness of his mother's condition in terms that a layperson could understand and nothing is said about her ability to travel.
What is put against the husband's application, is that the basis of the application, is not there in the evidence. It is put by Mr Eidelson for the wife that the husband says that this visit by the children is necessary now because of the serious condition of his mother. I think perhaps the husband's affidavits suggest an inference that his mother is so seriously ill that there is a risk that the children might not see her if they do not go now but certainly he says she is not capable of coming to M. The evidence in terms of the medical reports does not show that but I do not see that as being the end of the application.
The application has to be dealt with in terms of the principles laid down in the Family Law Act. Firstly, s.60B sets out the objects of Part VII, the part which deals with children and they include that children, unless it is contrary to their best interests, are entitled to have contact with parents and other significant people in their lives. Section 65E sets out that the paramount consideration is the best interests of the children and s.68F(2) sets out matters to be taken into consideration when considering the children's best interests.
So far as the application to take children overseas is concerned, there have been discussions by the Full Court of the Family Court, for instance Line v Line (1997) FLC 92-729 - which sets out the approach to be taken and matters to be taken into account in these applications. Much of them are concerned with the risk of the children not being returned to Australia. That is not so much at the forefront of the wife's opposition to this application but it does need to be dealt with. The other matter, apart from the general considerations about best interests of the children, which is dealt with in the authorities is the effect on contact with the parent who is not travelling with the children. That is something that has to be considered here.
I can dispose of the issue about risk of the children not being returned to Australia fairly quickly. The husband in his affidavit sets out his connections with Australia. He is now an Australian citizen. He has permanent employment in Australia as a M S O with the D I V. He has purchased land in Australia. He regards his future as being in Australia and so far as his prospects of betterment in his employment and employment generally, he considers that his prospects in Australia are very good. His first permanent employment was a teaching position with a tertiary and further education institution in G. As I said earlier, he has worked – I do not know that he specifically sets out his position but I can infer that he has worked as a M E on international shipping but now, with the qualifications that he has, he has permanent secure employment in Australia. It is most unlikely that he would for that reason want to stay in I but in any event through his counsel, he has offered to place $72,000.00 in trust. He has that amount of money from the sale of some property.
The other matter to be taken into account is that I is not a Hague convention country, which I do, but I am quite satisfied that the husband's connections with Australia and his preparedness to place $72,000.00 in trust, means that whatever small risk there might be that he might not return to Australia is more than adequately dealt with.
The issue that was at the forefront of Mr Eidelson's submissions was that the husband had not established the basis for wanting to take the children to I, that being the illness of his mother. But I think that is not strictly the foundation of the application. The foundation of the application is that it is in the children's best interests that they maintain contact with their relatives, their paternal grandmother, aunts and uncles and cousins on their father's side. There can be no dispute that it is in their best interests that they do establish and maintain that contact and indeed it is, as I have said, one of the objects set out in s. 60B of the Family Law Act.
So far as the grandmother is concerned, it was submitted that there is nothing to say the grandmother cannot come to Australia. It is correct that the medical certificates do not say that she is incapable of travelling, however she is 65 years of age. She has a heart condition which is described by Dr Dalal as “serious heart problems” and even if she is not in such a condition that an airline would refuse to carry her, it is understandable that she might be reluctant to travel at age 65 with advice from a doctor that she has serious heart problems. She might be reluctant to leave her established support groups in I.
She would have the difficulty of medical treatment in Australia if she needed it. It is put that she can obtain medical treatment in Australia but she would need to pay for it. She of course would not be eligible for Medicare, free medical treatment in Australia so she would have to pay for whatever treatment she needed. I think I can take judicial notice that she would have great difficulty in obtaining travel insurance to cover her heart condition, so I accept that it is understandable that the grandmother would not be coming to Australia so that if the children are to see her in the near future, they will need to go to I.
A significant matter is the age and state of development of the children and how that might affect their care. The younger child will be two years and nine months by this Christmas and the older child will be just past five. His birthday is in September. But in terms of the father caring for their physical and emotional needs on a day‑to‑day basis, there is no issue. He has them regularly three weekends out of four for overnight contact and he has had them for the block contact that I have described. Their mother is their primary carer and if they are to go, it would be a period of just over three weeks where they are away from their primary carer.
I note that the mother's response is proposing - in terms of the contact generally, she is proposing from the Christmas after next, therefore the Christmas after the proposed travel, that there be contact for half of each school holidays, contact for both boys, and that would be a period of three weeks. Christmas school holidays are six weeks so that would be for a period of three weeks. It is not uncommon for children of this age, two and three-quarters and five and a quarter, to have block contact of half school holidays with the non-resident parent so that if it was purely a matter of considering whether it might have an adverse effect on the children being away from their mother for three weeks over a holiday period, I do not see that as pointing against there being this amount of block contact. I do not believe that it would affect the children adversely on its own, but it cannot be considered on its own because they will be taken to M in I.
The mother in her affidavit refers to having episodes of food poisoning in I while she has been there and the husband having food poisoning in I. She is concerned that the children will be exposed to an environment which is considerably less hygienic than they are used to here in M and being, in addition, exposed to food to which they are not used to and that that may affect their health. She is concerned that medical facilities in M are not as good as they are in M. There is no specific evidence about medical facilities in M but I believe I can take judicial notice that it is a large city and economically it is a fairly sophisticated city. The husband will undoubtedly have travel insurance and so he will have access to medical facilities in M.
Next there is concern about where the children will stay, their physical surroundings. They will be staying in their grandmother's two-bedroom apartment. The mother has seen this apartment. Her specific concerns are that it is upstairs and there is a steep spiral external staircase, dangerous to children aged just over five and particularly under three. There is also an external balcony on the other side of the apartment. The husband says he is aware of that and will ensure that precautions are taken. So far as risk of the apartment is concerned, I think I can accept that the husband will take the necessary precautions. The children are of an age where they cannot be left alone in any event. They need to be watched even inside a house and the father has shown that he can do that because of the regular contact he has with them. They will also be with a grandmother, in a premises where the grandmother is present and where there is a sister and a brother of the husband. So there will be adults concerned for the welfare of the children around the whole time.
The wife is concerned about the sleeping arrangements because of the size of the apartment. The husband has said that the boys will have their own double bed to sleep in. Again I believe I can be confident that so far as that aspect of their welfare is concerned, he will look after them.
The wife is concerned about the weather. It is very hot and unpleasant in the I summer period. The husband says that this will be Christmas which is the cooler period where temperatures are perhaps 24 degrees. It is not so unpleasant and he says in any event his mother has had air-conditioning installed in the apartment.
Going back to the food, the husband has said that he is aware of those issues. He proposes taking food from Australia with him. He says western style food, as opposed to I food, is available in M and the children will not be eating outside the home. It is put against him that it required the prompting of the wife's affidavit for him to respond to that but he has indeed responded. Again I accept that he does have the children's interests at heart and that he has shown that he is capable of looking after them and that he will take care to ensure that they are not exposed to food which might upset them – firstly, food which might give them food poisoning or even food which they are not used to, which is foreign to them and which might upset them. I accept that he is aware of those issues and will take care about them.
The question of civil unrest is raised in the wife's affidavit. She refers to a recent bomb explosion in M. The husband deals with that and he says that, as is well known, the civil violence problems in I are because of the conflict between H and M. He and his family are C or C. He sets out in some detail that his mother lives in the northern part of M, some distance from the centre. The problems have been in the southern part. They will not be travelling in that direction and they will not be travelling to tourist areas which might otherwise be subject to terrorist threat. I note that there has not been exhibited any travel warnings by the Australian authorities so I proceed on the basis that apart from the general warnings about taking care both inside and outside Australia, there is nothing specific about the areas where the husband proposes to take the children and the areas through which he proposes to travel. So far as the travel itself is concerned, he proposes to break the journey but in any event children this age commonly travel long distances by plane and one suspects often cope with it better than adults.
Finally, there is the issue of the fact that the mother will not be having contact for a period of some three or three and a half weeks, which is a matter to be taken into account. In particular she will miss out on Christmas contact. It has been pointed out to me by Mr Eidelson that she did not have the children for Christmas last year. They stayed with the husband. I need to balance that against the benefits to the children of seeing their extended family.
Another matter I need to deal with which was raised is that the older child, that is, K, will be commencing school next year. He will be over five, but in the range of ages for boys at starting school he will be towards the lower end as current thinking goes. The current thinking is that boys should start school later rather than earlier and the wife is concerned that three weeks away in I in a foreign environment will unsettle him for the important time of commencing at school. Nothing other than the general possibility of his being unsettled is put. I do not see that as a real risk. He will be in the care of his father who he knows and he will be with other relatives. He will then come back and have a period of three weeks before school. I consider it quite a long time in the life of a 5 year old and more than sufficient time for him to settle back into his routine of life back in M.

So when I take all those matters into consideration, I consider that it is in the best interests of the two children that they do have the opportunity to spend some time with their extended family.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: