Ciavola and Previn

[2007] FamCA 1136

FAMILY COURT OF AUSTRALIA

CIAVOLA & PREVIN [2007] FamCA 1136

FAMILY LAW – CHILDREN – PASSPORT – Temporarily released for Overseas travel

Family Law Act 1975 (Cth)

APPLICANT: Mr Ciavola

RESPONDENT: Ms Previn

INDEPENDENT CHILDREN’S LAWYER: Mr M.L. Pavone

FILE NUMBER: MLF 12055 of 1999

DATE DELIVERED: 19 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 19 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S.L. Johns

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN'S LAWYER

COUNSEL:

INDEPENDENTCHILDREN'S LAWYER

SOLICITOR:

Orders

1. That the operation of paragraph 2(a) of the Orders dated 25 September 2002 shall be suspended to permit the father to take the child S born … November 1997 to the United States of America for a period of not more than two weeks from approximately 17 January 2008 to 27 January 2008.

2. That no less than seven days prior to the father’s proposed departure date for travel pursuant to order 1 hereof he shall:

   (a)Provide the mother with copies of:

   (i)     Travel itinerary;

   (ii)    Contact addresses and telephone numbers during the proposed travel period;

   (iii)     Proof of purchase of return airline tickets to the United States of America evidencing direct flights with no stopovers in non-Hague convention countries for the father and the child; and

   (iv)   Proof of the deposit referred to in paragraph 2(b) of these orders;

   (b)Deposit with the father’s solicitor the sum of $30,000 (“the Security”) to be held upon trust pending the return of the child to Australia, such sum to be refunded to the father upon the child’s return to Australia.

3. That upon the Independent Children’s Lawyer being satisfied that the father has fully complied with paragraph 2 of these orders, the Independent Children’s Lawyer shall release the child’s passport to the father.

4. That during the period of travel provided in paragraph 1 of these orders the child shall communicate with the mother by telephone every two days, such telephone communication to be initiated by the father.

5. That in the event of the father’s failure to return the child to Australia in accordance with paragraph 1 of these orders, the father’s solicitor forthwith release the Security to the mother, such sum to be applied by her for the purpose of securing the child’s return to Australia. 

6. That upon the child’s return from the United States of America the father shall do all such acts and things as may be required to deliver the child’s passport to the Registrar of the Family Court of Australia at Melbourne, such passport not to be released to either party without the consent in writing of both parties or order of the court.

7. That the appointment of the Independent Children’s Lawyer shall be discharged from 31 January 2008.

8. That all existing applications shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.

9. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. That my reasons for judgment given this day shall be transcribed and placed on the court file and made available to all parties.

IT IS NOTED that publication of this judgment under the pseudonym Ciavola & Previn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 12055 of 1999

MR CIAVOLA

Applicant

And

MR PREVIN

Respondent

REASONS FOR JUDGMENT

1. The child S is nine years and 10 months.  His parents either separated in 1999 or they never lived together.  There are different versions.  What is important from my perspective today is that he has always lived with his mother.  Consent orders were made in 2000, for the child to remain living with his mother and to have very regular time with his father.  Final orders were made by consent in 2002, again with a regime whereby the child was to live with his mother, but with regular and consistent times with his father.

2. This current round of litigation started in 2005.  The father had sought equal time for the child in each household.  It is now agreed that the existing arrangements whereby the child lives with his mother and spends overnight every Thursday, alternate week-ends, and half of the holiday times with his father, shall continue.

3. It leaves only one issue for me.  The father wants to take the child on a holiday to the United States from 17 to 26 January 2008.  The mother does not want the child to go until he is twelve.  Although the mother has represented herself before me, she was represented by a solicitor until a couple of days ago, and various conditions to the father's travel were apparently agreed.  It was just the child's age and the time for him to travel - whether he should be ten or twelve - that is in dispute.

4. The father relies on his Amended Application filed 15 June 2007 and his affidavit filed 3 August 2007, as well as the Minutes of Orders that are set out in the Case Outline document that will be filed by the father's solicitor within the next 24 hours.

5. The mother for her part relies upon an Amended Response filed 1 August 2007 and her affidavit filed 1 August 2007, as well as the report of Ms D attached to an affidavit filed 6 August 2007 relating to the overall parenting proceedings that have mostly just resolved.  She also asked me to look at an historical report of Ms D's dated 17 November 2005.

6. The father argues that he wants to take the child to Los Angeles and Disneyland simply to enjoy the experience together, including a trip to Legoland, as the child is apparently a big Lego fan, and to explore some of the Star Trek attractions, as he is a Star Trek fan.

7. The father has brought several such applications in the past.  They have been opposed by the mother.  Ultimately they have either been withdrawn, or in one instance dismissed.  As I understand it, the dismissal was not on its merits.  This is the first time that the merits have been argued out in court.

8. The mother argues as follows.  She fears the father will not return the child to Australia.  She swears in her affidavit that he has "significant means at his disposal", although her affidavit did not expand upon that.  And, she refers to the Family Report of Ms D, written in July this year, where Ms D said, "It is wholly evident that [the father’s] personal emotional investment in [the child] is very great."

9. In court today the mother has added that the father has always threatened that one way or another he would get custody of the child. She is concerned that at ten, the child does not have the emotional maturity to withstand being bluffed by his father as he would probably be able to do if he were twelve.

10. To that opposition by the mother, the father says he was born in North Africa but emigrated with his family to Australia in 1972, when he was just a small child.  He is now aged 43.  He says he has always lived in Australia.  He is an Australian citizen.  He has an Australian passport.  He does not hold a passport or citizenship of any other country.  His close and immediate family is here, being his mother and his brothers and the wife of one brother.  He is employed here, as a teacher at a primary school where the child is a student, and he also works for his brother's company editing textbooks here in Australia.

11. He is agreeable to orders limiting his travel to the United States, a Hague Convention country.  He agrees to provide the mother with all appropriate documentation before travel, and he agrees that he will deposit a $30,000 security before he leaves.

12. The Independent Children’s Lawyer supports the trip in January 2008 on the agreed conditions, with an additional condition that the father give proof to the mother that the $30,000 deposit has been made, at least seven days before travel.  The Independent Children’s Lawyer says that there is no reason to wait until the child is twelve.  The father clearly and keenly recognises his son's need to be with his mother, and has shown insight in accepting that, and in accepting the recent report of Ms D, although it went against what he wanted and indeed what the child had said he wanted, which was a slightly longer period with his father.

13. Ms D considered that shared time regime.  As I have just noted, she was against it.  She favoured the current regime continuing.  She did not address this proposed trip in any detail.  She said that both parents should have further counselling.  She did refer to the father's need to separate his emotional needs from the child's, but she also said that the mother needed her own professional assistance.

14. I have heard both parents cross‑examined.  The father's evidence satisfies me that there is not an unacceptable risk that he will keep the child overseas.

15. Although the mother says that in the past he has threatened to do whatever is necessary to have the child live with him, and although Ms D refers to that need for some emotional distance between father and son, the reality on all the evidence is as follows.  The father has lived here for 35 years.  He is very close to his immediate family who live here, and conduct a business here.  The brother who is married is expecting twins here in February 2008.  If anyone does travel with the father and the child it would be the other single brother and no other family members.  His mother has only travelled to Europe, where she has family, twice in 35 years and for very short periods.

16. Although the mother says the father has access to ample funds with which to move, that was not substantiated with any independent proof in the course of the evidence.  Most importantly, for all the years of court orders, the father has complied with them.  He returns the child appropriately every Friday, and every alternate week-end, and after school holiday periods.  The mother agrees she has never had to take any enforcement proceedings.

17. The father has initiated two particular rounds of litigation over the last seven or eight years.  They have been appropriately resolved.  That is not consistent with the mother's claim of “constant litigation” and “constant threats of litigation”.  I note that she herself has initiated several rounds of litigation along the way. 

18. The father is consistent in conceding that the child would not cope without his mother.  That is why he had recently sought shared care, rather than that the child move from his mother to live with his father.  He readily concedes that the child is happily settled with his mother, happily settled in Australia, and at school and with his friends, and that he could not cope if those things were taken away from him.

19. I agree with the point made by counsel for the Independent Children’s Lawyer that the father has also shown insight in accepting the recent report of Ms D.  Although it supported the father’s claim that the child was requesting more time with him, he was prepared to accept Ms D's professional opinion that nevertheless, it is in the child's best interests for the current regime to be maintained.

20. In my view, the mother's concerns are based more on lack of trust arising from the parental conflict and poor communication, noted by Ms D, than on any substantiated or unacceptable risk that the child will be abducted.  She says that she is going on "gut” or “instinct".  For my purposes that is not sufficient and her concern that the father can easily bluff the child is simply not sustained on the evidence.  It seems the child has been open and honest with both his mother and with the expert, and has not been duped, or bluffed, or in any way tricked into saying that he wants to be only with his father.

21. In my view there is no justification to delay this trip for two years.  The first application was when the child was six.  He is now ten.  He is a very intelligent child.  He can ring his mother, and he is not going to be out of the country for long.  I am satisfied that the proposals put in place provide appropriate safeguards.

22. I propose granting the father's application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  19 September 2007