Clovelly and Clovelly

[2009] FamCA 860

FAMILY COURT OF AUSTRALIA

CLOVELLY & CLOVELLY [2009] FamCA 860

FAMILY LAW – CHILDREN – Application for parties to sign all relevant documents to enable child to obtain passport – Application for child to leave Australia temporarily to attend mother’s sister’s wedding in Malaysia via Singapore – HELD – Application denied, primarily on the grounds that Malaysia and Singapore are not signatories to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and that if the mother were to abscond with the child it would be nearly impossible for the child to have the benefit of a meaningful relationship with her father

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3)

APPLICANT: Ms Clovelly

RESPONDENT: Mr Clovelly

FILE NUMBER: CAF 655 of 2005

DATE DELIVERED: 31 July 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 31 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Burgess

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The mother’s Application in a Case relating to her having permission to leave Australia with the parties’ child is dismissed.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 655 of 2005

MS CLOVELLY

Applicant

And

MR CLOVELLY

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by an Application in a Case filed on 26 June 2009.  In that application, the mother sought that the parents of their child would do all things necessary and sign all documents as may be required to enable her to obtain an Australian passport.

2. The mother further sought that she be permitted to travel with the child to Singapore and Malaysia for the purposes of a holiday and attending the wedding of her mother's brother in December 2009.

3. The supplementary orders that were sought related to the removal of the child from the Passport Watch Alert List for the purposes of the overseas travel only, and that the child’s father be required to cooperate in the obtaining of a valid passport for the child.  That was supported by a brief affidavit from the mother in which she says that she wants to go for a holiday to Malaysia.  She sets out a proposed itinerary for the trip but was not, at the point of making the application, determined which flight she was going to take.

The evidence of the parties

1. The current passport held for the child, who is a Malaysian citizen at the moment, is held by the Court but has expired.  She indicated that she would apply for, or had applied for Australian citizenship but this would not have come through until 27 November 2009 which was shortly before she was due to go away.  She indicates she has some current employment in Australia but no employment in Malaysia and Singapore and asserts that the child is well settled in Canberra and doing well at school.  She also asserts that she has educational opportunities in Australia which are not available to her in Malaysia.

2. She asserted that she had a strong social network in Canberra and a commitment to the child’s school choir, and she refers also to her brother who lives in Canberra and claims a close relationship with him.  She says she has made application for jobs in the public service but has not got any results.  She swears that she has no intention of remaining in Malaysia and Singapore and offers a $5,000 bond which she says she has borrowed from her friends.

3. The matter came on at relatively short notice and the father sought some time to reply and to file an affidavit.  His affidavit was described in disparaging terms by Ms Burgess on behalf of the mother and a number of the criticisms she makes are valid. 

4. The affidavit from the father asserts a number of matters, some of which are common ground and some of which are incapable of being proved by his assertion and some of which relate to matters that should not properly be proved in that way, such as the material that comes from Department of Foreign Affairs & Trade about travel warnings and the like.

5. There are also assertions which would need some response, if I were not to deal with them in an appropriate way, about things that are asserted to have been said by the mother relating to bribery of officials and so forth.  I do not place any weight upon those assertions at this point. 

Malaysia & Singapore are not signatories to the Hague Convention

1. Perhaps of more significance is the assertion of what I know to be a fact that neither Malaysia or Singapore is a signatory of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), and while I do not accept the references to the G case or to the assertions by the father on evidence that Australia does not have good relations with Malaysia, it is clear that if in fact the mother were to seek to remain in Malaysia or in Singapore, contrary to her sworn intent, for whatever reason, it would be extremely difficult, particularly if the child were not – or even if she were an Australian citizen, with any ordinary process to bring her back here.

2. The father's assertion about the relationship with the mother with her brother is no more helpful to me than the mother's assertion that she has a close relationship with her brother, and I take no particular notice of the father's assertions about what he says might be possible for the mother to work in Malaysia.

3. I am, to some extent, influenced by the fact that the property proceedings judgment is still outstanding and there are still some debts required to be finalised before I can deliver my judgment.  This is asserted by each of the parties as being relevant.  By the mother, it is on the basis that she would return to obtain the benefit of it.  By the father, as saying that it is irrelevant because of the debts that he asserts the mother has.  I have no evidence from the mother about whether or not the father's assertions about those matters are true.  In this regard, I offered an opportunity for an adjournment for that material to be put before me, not necessarily in particular but in general, but that was not availed of.

What is in the child’s best interests?

1. On balance, I have the situation where I have to look to the child’s best interests, and in looking to her best interests, I must take account of the matters that are set out under the Family Law Act 1975 (Cth), and those include in a primary way the importance of the benefit to the child in maintaining a meaningful relationship with both of her parents.[1]  It remains, I suppose, obvious that if she were to remain in Malaysia with her mother, then the relationship with her father would be significantly curtailed, if not eliminated.

   [1] Family Law Act 1975 (Cth) s 60CC(2)(a).

2. I do not place any reliance upon the other primary ground, which is that she must be kept safe.[2]  I am not satisfied on the evidence I have from either party, and particularly from the father, that there are any matters which would necessarily reflect upon her personal or physical safety if she were to travel to Malaysia or to Singapore. 

   [2] Family Law Act 1975 (Cth) s 60CC(2)(b).

3. The other matters that I am to take into account as set out as additional considerations under the Family Law Act 1975 (Cth),[3] and these include the relationship of the child with each of her parents and other matters relating to parental responsibility.  I do not regard any of those as being particularly significant to my decision.  My decision is based on the fact that the trip to Malaysia would take place in circumstances where there is not any significant and appropriate financial bond offered by the mother which would ensure her return.  She is travelling to a country from which it would be difficult, if not impossible, to obtain her return if she were – and I am not suggesting for a moment that she is – if she were not being honest with this Court about her intentions.

   [3] Family Law Act 1975 (Cth) s 60CC(3).

Conclusion

1. In the circumstances, I am not satisfied that the evidence presented by the mother is sufficient to permit me to make the application that she seeks and, accordingly, the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate:

Date:  9 September 2009