Chinasa & Ekwueme
[2023] FedCFamC1F 79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chinasa & Ekwueme [2023] FedCFamC1F 79
File number(s): NCC 36 of 2017 Judgment of: ALTOBELLI J Date of judgment: 7 February 2023 Catchwords: FAMILY LAW – PARENTING – International travel – Where the mother seeks to travel with the child to Country C and Country B– Where the father opposes international travel to non-Hague Convention countries – Where the mother is on a bridging visa and the father and child are Australian citizens – Where the Court finds there would be a risk of harm to the child and risk of non-return if allowed to travel overseas – Previous order reinstated for prohibition on child to be removed from Australia and for child to remain on Family Law Watchlist Legislation: Hague Convention on the Civil Aspects of International Child Abduction Cases cited: Cales & Cales (2010) FLC 93-459; [2010] FamCAFC 237
Gin & Hing [2010] FamCA 617
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line & Line (1997) FLC 92-729; [1996] FamCA 145
Lorde & Chu [2015] FamCAFC 3
Thomason & Malhotra [2010] FamCAFC 85
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 6 February 2023 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: King & York Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Inner West Solicitors Pty Ltd Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
NCC 36 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHINASA
Applicant
AND: MS EKWUEME
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
7 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Order 1 from the orders made on 25 January 2017 is reinstated, namely:
(a)The Applicant MR CHINASA and the Respondent MS EKWUEME his/her/their servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, X, born 2016 from the Commonwealth of Australia.
(b)It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order or the Court orders its removal.
(c)The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
2.All outstanding applications otherwise are dismissed and the matter removed from the list of cases awaiting finalisation.
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 the pseudonym Chinasa & Ekwueme has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
In this matter, I provide the following oral reasons for judgment. These brief oral reasons for judgment explain the orders the Court has made following a hearing which occurred on 6 February 2023, and where the main issue was whether, and if so, on what conditions the mother is able to travel overseas with her son, X (“X”). X is seven years old. His father (“the father”), who is the applicant in this case, is 45 years old, and his mother (“the mother”) who is the respondent in this case, is 37 years old. Both parents are of Country C descent. From 2009, the father commenced living in Australia and appears to have obtained Australian citizenship in 2013. The parties married in a traditional ceremony in Country C in 2014, and then later that year, in an official ceremony.
Their intention was to live in Australia, but they encountered difficulties with obtaining approval for the mother to travel here. In 2015, they appeared to have agreed that the mother move to Country D on a four month tourist visa. Whilst the mother was there, she apparently gained a student visa, and X was born whilst the mother was living in Country D. The Court finds that whilst the mother and X were in Country D, she made plans to return to Country C. She contends that it was because her visa expired, but the father contends that it was without his consent and, initially, without his knowledge. He commenced proceedings in the Magistrates Court in Country D, and obtained orders on 14 November 2016 granting joint residence and custody to both parents, and an order that neither parent could take the child out of any country without the written consent of the other.
In late 2016, the mother and X arrived in Australia from Country D. X appears to have travelled on an Australian passport and the most likely scenario is that the father obtained this for X on the basis of descent. The mother arrived on a temporary visa. They cohabited for a period. It may well have been a tumultuous and unhappy relationship. They finally separated in December 2016. The evidence indicates, therefore, that both the father and X are Australian citizens. The mother is a citizen of Country C and is in Australia on a bridging visa, pending her application for a spousal visa and with the ultimate expectation of gaining permanent residence.
The father commenced the present proceedings on 25 January 2017, and these proceedings were ultimately finalised by consent orders made on 23 January 2023. The consent orders provided for equal shared parental responsibility, and for X to live with his mother and to spend unsupervised time with his father on a gradually incremental basis, including special days. The mother has remarried and her husband is also of similar descent. The mother and her husband have formed a family together.
By the time of closing submissions, and after both parents had been cross-examined, the competing proposals for orders were as follows.
Both the Independent Children's Lawyer and the father merely sought the continuation or reinstatement of an order made on 25 January 2017, the effect of which is to keep X on the Family Law Watchlist and to prevent him from travelling overseas.
An issue arose as to whether the recently made consent orders had the effect of vacating the order made 25 January 2017. Hence, the description of the situation being whether that order is to be continued or reinstated. The Court will proceed on the basis that the order was, in fact, vacated.
In contrast, the mother's proposed order was that once she obtained permanent residency which enabled her not just to leave Australia but to re-enter Australia, she be permitted to leave Australia for overseas travel with X. The mother proposed that if she did intend to travel overseas, she would deposit a security bond in the amount of $10,000 as surety that they would return to Australia. Her proposed orders contain details about a passport for X and where it would be deposited, the provision of detailed travel plans, limitations on when the travel could take place, and the provision of communication when travelling.
The Court observes that on the mother's proposal, there was no limitation on where she could travel and, also, that it was clearly part of her case that she be permitted to travel to Country C as well as to Country B, as members of her family are present in both countries. It is common ground that whilst Country B is a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), Country C is not.
In support of his case, the father relied on:
(a)Further Amended Initiating Application filed 17 February 2017;
(b)His affidavit affirmed on 2 February 2023; and
(c)Notice of Risk dated 10 January 2017.
In support of her case, the mother relied on:
(a)Response to Final Orders filed 24 February 2017;
(b)Her affidavit filed 30 January 2023; and
(c)Notice of Risk filed 24 February 2017.
In support of their case, the ICL relied on:
(a)The father’s Initiating Application filed 10 January 2017;
(b)The father’s affidavit filed 8 March 2017;
(c)The Child and Parents Issues Assessment dated 10 March 2017;
(d)The Family Report prepared by Ms E dated 5 October 2021; and
(e)Documents tendered and marked as exhibits ICL1–ICL2 on 6 February 2023.
The applicable law is found at paragraphs 6 to 11 of the father's Case Outline filed on 3 February 2023:
6.It is submitted that when considering an order for international travel, the following matters are relevant:1
(a) The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the application;
(c) The effect on the child of any depravation of spending time with the other parent;
(d) Any threats to the welfare of the child by the circumstances of the proposed environment; and
(e) The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
7. In Thomason & Malhotra the court held that it was not required to systematically consider these factors.2
8.It is submitted that relevant to the making of such an order will be assessing risk of non-return of a child from overseas travel.
9.To the question of risk, the court in the decision of Line & Line3 held that the following are relevant factors:
(a) 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); and
(b) The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and
(c) 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/or personal friends there); and
(d) Whether the country of travel is a signatory to the Hague (Child Abduction) Convention.
10.It is conceded that a country that is not a signatory to the Hague (Child Abduction) Convention is not determinative,4 but otherwise a part of the considerations a court will take into account when assessing risk.
11.In the event that the risk that the child will not return to Australia is unacceptable, the Court can restrain the parties by injunction from removing the child from Australia.5
1Kuebler & Kuebler [1978] FamCA 26; (1978) FLC 90-434, [15].
2 [2010] FamCAFC 85 at [49] – [50].
3 [1996] FamCA 145.
4Gin & Hing [2010] FamCA 617; Lorde & Chu [2015] FamCAFC 3 at [10].
5Cales & Cales [2010] FamCAFC 237 at [80].
(Footnotes as per the original)
The evidence before the Court included a travel advisory issued by smarttraveller.gov.au, dated 19 January 2023. The advice is stated in the following terms:
Reconsider your need to travel to [Country C] overall due to high threats of [civil unrest and violence].
When this travel advisory is read in its entirety, it becomes apparent that the advice cannot be read as being confined by reference to the section that appears immediately above it, entitled “Latest Update”. The update refers to forthcoming events and the risk of related violence. On any fair reading of the document in its entirety, however, it cannot be said that the strong advice against travel is somehow circumscribed by reference to the forthcoming events.
Moreover, the evidence of both parents confirms that the specific areas that the mother would visit on a return to Country C, namely, the locations at which her family lives, are covered by the “reconsider your need to travel” warning. The Court places significant weight on this evidence.
In the wife's evidence, the Court finds that she presented as indifferent and insouciant about both the travel advisory and the risks identified therein. She professed not to have even read the travel advisory and to prefer to rely on the advice of family members in Country C, with whom she communicates. The Court finds that this manifests a very poor attitude towards her responsibilities as a parent to X and reflects poorly on her parenting capacity, in that she is unable to discern potentially risky situations for him.
The Court acknowledges that the mother's counsel, Ms Bateman, valiantly sought to minimise the significance of the travel advisory by acknowledging that even on an optimistic perspective of the mother's case, it would be several years before she could gain permanent residency and, thus, have the ability to leave Australia and return. Thus, counsel submitted, the Court would place little weight on a current travel advisory. The Court does not accept this submission, creative as it is. If the risk to X of travelling to Country C is not assessed by reference to the present, then what is it assessed by reference to? All the Court can do is assess the known risk at the time of the hearing.
Counsel's submission also, frankly points to another fatal flaw in the mother's application. If it would be several years before she could gain permanent residency and, thus, have the ability to leave to Australia and return, why was the application brought now? It was premature, and invited the Court to speculate about conditions that would be in existence at an unknown future time. But as will be seen below, it is the mother's own evidence that raises serious issues about her safety and, thus, that of X if they return to Country C. The safety concerns are based on events that existed before the mother travelled to Country D, that is, several years ago, but her affidavit presents her concerns on a continuing basis.
Moreover, on any fair reading of the travel advisory, there is nothing to suggest that the serious concerns expressed therein, other than the reference to the forthcoming events, are temporarily based. The Court observes that the mother's concerns about travel related to violence, and that violence is a central feature of the travel advisory warnings.
Both parents gave evidence by way of affidavit and then cross-examination. The father provided answers to questions in a responsive and matter of fact fashion. The mother was frequently unresponsive and occasionally evasive, especially when confronted with her own evidence about the dangers to her safety because of her marriage to the father, such that prompted her to leave Country C.
Her evidence was also implausible at times. For some reason, not accepted by the Court, she believes that past dangers are alleviated because she is no longer married to the father. This is a matter which, according to her “the whole world knows”. She simply could not explain to the Court's satisfaction the logic underlying her belief. Moreover, the Court found entirely unconvincing her attempts to distance herself from the fears for her safety that prompted her departure from Country C in the first place, by reference to a passive acceptance by her of what the father asserted as the risks to her as a result of his involvement in a particular political movement. The graphic descriptions of the risks to her, and thus to X, of returning to Country C, are found at paragraphs 10, 11 and 117 of the mother's own affidavit.
After hearing the mother's evidence in cross-examination, the Court is left in no doubt that the fears she expresses here are her own fears as well as those expressed by the father to her in this case.
Perhaps the nadir of the mother's evidence in cross-examination, however, was when counsel for the father asked her whether X was a citizen of Country C and she answered “not yet”.
When asked if she planned to obtain a Country C passport for X, she explained that she would, with the father's consent. The significance of the mother's evidence in this regard must be viewed in the context of her much broader evidence in relation to her alleged strong community ties in Australia.
Her assertion that X was “not yet” a citizen of Country C was, the Court finds, indicative of an agenda on her part to achieve just this. Once again, in closing submissions, her counsel, Ms Bateman, valiantly sought to convince the Court that, in effect, the mother must have been referring to dual citizenship for X. There is no basis for this interpretation of the mother's evidence, nor is the significance of the mother's evidence mitigated by the statement that a Country C passport could only be obtained with the father's consent. The more plausible explanation for this latter acknowledgement by the mother is that the significance of her comment “not yet” suddenly occurred to her after she made the comment, and the reference to the consent of the father was a quasi-rear-guard self-justification.
The strength of the mother's alleged community ties to Australia was further weakened by her own evidence revealing that she was “in the process of applying” for a partner visa. But when asked in cross-examination what this meant, she explained that she had contacted a lawyer about this “last night”, that is, meaning the night before this hearing.
The mother's application for international travel cannot be sustained on the evidence before the Court. It is a proposal cloaked in uncertainty, particularly as to when the travel might occur. Her case does not address the potential dangers to her son's welfare, given her own evidence about the risks to her and the current travel advisory.
The Court is left with lingering doubts about her assertion of such strong community ties to Australia that she will return to the jurisdiction. The Court finds that there is a real risk that if X is allowed to travel to Country C with his mother, he will be exposed to a risk of harm, as well as the risk that he will not be returned to Australia. The fact that the Hague Convention does not apply to Country C means that the amount of security deposit proposed by her, let alone the modest amount suggested in her orders, would provide little comfort or practical assistance to the father.
Moreover, despite the consent orders in relation to parenting matters, it is clear from the evidence of both parties, but particularly that of the mother, that her relationship with the father is characterised by mistrust and enmity. This provides a powerful motivation not to return to Australia. The Court accepts the legitimacy of the mother's desire to see that X is raised having a relationship with the maternal family. The Court notes that X is currently, it would seem, according to the mother, frequently communicating with them. The Court acknowledges all of this but at the end of the day, it must assess the risk to X. Moreover, there was really no evidence to indicate why relatives – for example, those in Country B – could not travel to Australia to see X.
Having regard to all the evidence, the Court is satisfied that the orders proposed by the Independent Children's Lawyer and the father are appropriate. The Court observes that the mother lost an opportunity to settle this case on the alternate basis proposed by the father, i.e. travel by agreement to a Hague Convention country. After the evidence that she herself gave in cross-examination, it is, with respect, hardly surprising that the father would align himself to the position adopted by the Independent Children's Lawyer, whose concerns were consistent with those expressed by the Court.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 7 February 2023
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