Denis and McPhearson and Ors

[2011] FamCA 517

FAMILY COURT OF AUSTRALIA

DENIS & MCPHEARSON AND ORS [2011] FamCA 517

FAMILY LAW – PARENTING – Whether the father should be permitted to remove the child from Australia for the purpose of an overseas holiday to Country E

Family Law Act 1975 (Cth)
Convention on Civil Aspects of International Child Abduction

APPLICANT: Mr Denis

RESPONDENTS:

Ms McPhearson

Ms B

Mr B

Ms C McPhearson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 54 of 2011

DATE DELIVERED: 28 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 24 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

COUNSEL FOR THE RESPONDENTS: Mr Schonell SC

COUNSEL FOR THE

 INDEPENDENT CHILDREN'S LAWYER

Mr Sperling

Orders

(1)  The father is permitted to remove the child D (a female) born … 2004 from the Commonwealth of Australia for the purpose of holidaying in Country E on the following conditions:

a.   The father is to provide to the Court a written undertaking to return the child to Australia in the form attached to these orders. The husband’s signature on the document is to be witnessed by his solicitor and the document is to be dated by his solicitor and delivered to the respondent’s solicitor and a copy delivered to the Court, prior to the father leaving Australia.

b.   The father is to provide to the respondent’s solicitors a copy of the child’s e-ticket for travel to and return from Country E with him. Such ticket is to be provided prior to the child’s departure from Australia.

c.   The father is to accompany the child on the flights

d.   The child is not to be absent from Australia for more than 15 nights (including travel time).

e.   Before departure the father is to provide to the respondent’s solicitors a telephone number at which the child may be contacted together with a time (Country E time) at which the child will be available to take telephone calls.

f.   The father is to permit the mother, Ms C McPhearson (the maternal aunt) and the maternal grandmother to speak by telephone to the child.

g.   The child is to be returned to Australia no later than 18 July 2011.

(2)  The father is to cause the sum of $20,000 AUD to be lodged with the respondent’s solicitors as a security bond for his promise to return the child to Australia pursuant to these orders. In the event of the father failing to return the child then the respondents may apply to the Court for access to the security bond to fund any necessary travel or legal expense which might be involved in securing her return.

(3)  Upon the return of the child to Australia following her holiday in Country E with the father pursuant to these orders, the respondent’s solicitor is to forthwith refund the said security bond.

(4)  The respondents are to do all things as may be required to assist the father in obtaining a passport for the child in a timely manner to enable the travel permitted by these orders.

(5)  The order made by the Court on 20 January 2011 placing the name of the child, D (a female) born … 2004 on the Airport Watch List at all points of international arrivals and departures to the Commonwealth of Australia is to be suspend from 1 July 2011 to 20 July 2011 inclusive to permit the child to holiday with her father in Country E pursuant to these orders.

(6)  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 by temporarily removing the name of the child D (a female) born … 2004 from the Airport Watch list for the period 1 July 2011 to 20 July 2011 inclusive.

(7)  The respondents are to cause the child to be delivered to her father at the usual changeover place not less than 24 hours prior to the departure time of the aircraft upon which the child is booked to travel to Country E.

(8)  Whilst the child is in Country E the respondents are permitted to contact her by telephone at the time and telephone number provided by the father on each of Tuesday and Friday each week.

(9)  Whilst the child is in Country E with the father, the father is to cause the child to make telephone contact with Ms C McPhearson each Sunday between 8pm and 9pm Australian time.

(10)         Pursuant to s65DA(2) and s62B, 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 54 of 2011

Mr Denis

Applicant

And

Ms Mcphearson

MS B

MR B

Ms C Mcphearson

Respondents

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Denis (“the father”) to be able to remove the child D (“the child”), born in 2004, from Australia for the purpose of a holiday in Country E. Ms McPhearson (“the mother”), Ms B (“the maternal grandmother”), Mr B (“maternal grandmother’s husband”) and Ms C McPhearson (“the maternal aunt”) (collectively “the respondents”) oppose that application. The final hearing of the case is now listed for three days to commence on 31 August 2011 and the parties are to attend on appointments for the preparation of the family report on 19 and 20 July 2011.

Background Facts

1. The father and mother met in Australia.  The father is a national of Country E. The mother travelled to Country E to live with the father.  The father is in the hospitality business.  The child was born in 2004.  In about mid-2005 the mother and the child, with the consent of the father, travelled to Australia with the express purpose of living here.  In Australia, the mother formed a relationship with Mr F who was 53 years of age. He lived in a de facto relationship with the mother commencing Easter 2007 and terminating in December 2009.  The nature of the relationship thereafter is a little speculative.  Based on his affidavit, however, he seems to have spent considerable time sharing a residence with the mother and the child thereafter.  The child has called him “Daddy” in the past.  He proposes to set up a trust to support the child should she remain living in Australia.  Mr F has a criminal history which includes his having been incarcerated for illegal drug supply.  He is currently awaiting trial on charges which include two counts of supply a large commercial quantity of ecstasy.  He has been granted bail.

2. The mother is currently an inmate at G Women’s Correctional Centre.  She faces very serious charges relating to the commercial supply of illegal drugs.  The precise charges she faces have not been provided to the Court.  The mother was arrested and detained by police on 8 December 2010.  She was thereafter charged with offences, the general description of which appears above.  At the time of the mother’s arrest, the maternal aunt took over the care of the child.  She took the child to stay with the maternal grandmother and her husband at H Town, which is situated on the M coast of New South Wales.

3. In her affidavit the maternal aunt recites a detailed history of her life.  She described her childhood and it is clear she had a very distressed and unhappy childhood.  She described how her father regularly bashed and assaulted her mother (the maternal grandmother).  She said her father had allowed his “mates” to sexually assault her, that is, the maternal aunt.  The maternal grandmother could not stop him.  Although the maternal grandmother tried to remove the maternal aunt from her father, she was unable to obtain any help to do so. 

4. There were periods of time when the maternal grandmother removed the maternal aunt from the house to live elsewhere.  Implicit in all this is that the mother also lived through the same trauma.  Both the mother and the maternal aunt, together with the maternal grandmother, were the subject of a horrendous assault by the maternal grandfather, who held a shotgun to the maternal aunt’s head, and threatened to kill both her and the maternal grandmother.  The mother ran for help.

5. The maternal aunt eventually fled the house of her parents at 16 years of age.  The maternal grandmother re-partnered about 23 years ago, and now lives happily with Mr B.  The paternal grandfather died.  Following that horrendous history as a child, the maternal aunt has suffered from mental ill-health for many years and has had lengthy admissions to psychiatric facilities.  She has suffered post-traumatic stress disorder and depression.  She has turned to alcohol and on two occasions she has attempted to take her own life.

6. In November 2010 the maternal aunt was living with the mother.  She said she was distraught at the effect which the mother’s way of life was having on the child or would have on the child.  There were arguments between the two sisters. The maternal aunt took an overdose of tablets.  She said, “Looking back on it, I believe my overdose was a cry to [Ms McPhearson] (the mother) to stop her activities before they had a serious effect on her daughter.”  Neither the maternal aunt nor the mother has provided any information to the Court about the mother’s so-called “activities”.

7. The future potential carers for the child, who can be identified, at this time, are the mother, the father, the maternal aunt and the maternal grandmother.  The respondents, that is, the mother, the maternal aunt and the maternal grandmother have real concerns about the father being a suitable carer for the child.  They say he has been convicted of an offence in Australia, which related to him making a false declaration when entering Australia in 2003. 

8. Records produced to the Court confirm that was the case.  He was found to have a large quantity of materials of an offensive nature.  He was fined.  The mother says the father may have serious offenses for which he has been convicted in City I.  She sets out in her affidavit material admissions alleged to have been made to her by the father in that regard.  Thus the potential carers for the child may all have serious deficiencies to be considered in the final hearing. 

Evidence of the Family Consultant

1. The family consultant, Ms J gave oral evidence to the Court, at my request, on 24 June 2011.  I had asked her to report in relation to the father’s proposal to take the child to Country E for a holiday.  The family consultant met with the child, the father, the maternal aunt and the maternal grandmother on 14 June 2011.  At that meeting she particularly noted hostility directed by the maternal aunt towards the father. 

2. The child reported to the family consultant that on the weekend before the meeting she had asked her father on Saturday if she could return to the maternal aunt, however, her father did not take her.  I note she was due to return to the maternal aunt at 5 pm on Saturday under the orders operative at that time.  The child spoke of skyping with her half-brother, stepbrother, and stepmother in Country E.  It appeared to the family consultant that the child was building relationships, particularly with her baby brother.

3. The child spoke of the bedroom she will occupy in Country E, which she called a “princess bedroom”.  The child said if she went to Country E for a holiday the maternal aunt would be sad, but would want her to have a good time.  She thought her brother in Country E would welcome her, and her father would be happy.  She thought her stepbrother would wonder why she was there.  She had thought about what she would bring back to the maternal aunt, her mother, and other family members from Country E.  She said she did not want to go.  If she had to go, she would like the maternal aunt to go as well. 

4. The family consultant detected no sense of anxiety in the child about the prospect of going to Country E.  The child knows that she will be returning to see the family consultant on 20 July this year.  The family consultant said she noticed that when the child was in the waiting room on the family consultant’s floor with her aunt, grandmother, and father on 14 June 2011, she did not make any eye contact with her father.  The family consultant said that when she was giving feedback to the maternal aunt, the maternal aunt had her face turned to the wall.

5. The family consultant said the maternal aunt told her if the child has to go to Country E for a holiday, she would assist the child, however the family consultant has concerns that would not happen.  The family consultant opined it would benefit the child to have a holiday in Country E with her father.  She said the benefits accrue because it would be a block period of time with the paternal family, and help develop her growing relationships with her paternal family.  The detriments would arise for the child if she was not supported in that trip by the maternal family.

6. Although the child is a compliant child, (as opined by the Family Consultant), there is a potential for her to be distressed at the airport.  The family consultant recommended that a handover to the father for a proposed trip to Country E take place away from the airport.  The family consultant opined that in her view there is more to be gained for the child from the trip than there is to be lost.  The family consultant said the maternal aunt had told her that if the child is in Country E she would skype with her.

7. The family consultant acknowledged her understanding as to the current time the child spends with her father.  She said she thought ten nights with her father would be optimal. However, fifteen nights, including travel time, should be acceptable for the child to be absent from her aunt, mother and maternal grandmother. 

8. In response to a question from the respondents’ Counsel, to the effect that the family consultant could not predict how the child would cope with a fifteen days/nights absence from the maternal aunt and her mother, the family consultant said that the child had coped with the loss of her mother in December 2010 with the support of the maternal family.  The family consultant considered the child has a good understanding of the travel involved in the holiday to Country E.  She is used to reasonably long absences from seeing her mother, as it was planned she would spend the school holidays with the maternal grandmother at H Town, that would have meant some lengthy absence from seeing her mother. 

9. The family consultant acknowledged that if the maternal aunt failed to engage positively with the child about the Country E trip, it could impact adversely on her. 

10. The family consultant reported she had met with the maternal aunt and maternal grandmother on 14 June 2011. She said neither had raised any concern that the father would not return the child at the conclusion of the holiday.  This evidence is important because in the latest affidavit by the maternal aunt, she claimed the father had threatened to not return the child in a conversation conducted on 9 June 2011, only days (in fact five days) before the meeting with the family consultant. 

11. In the hearing on 24 June 2011 each of the respondents’ Counsel, the independent children’s lawyer, and the applicant’s Counsel, were permitted short cross-examination of the family consultant.

Documents Relied on in the Hearing

1. The documents relied upon by the father are as follows:

   ·    Application in a Case filed 9 May 2011; 

   ·    Affidavit by the father sworn 27 April 2011, and in particular paragraphs 25 to 29, paragraph 43, and paragraph 44; and

   ·    Affidavit by the father filed in Court on 8 June 2011, paragraphs 19 to 23.

2. The documents relied upon by the respondents are: 

   ·    Response to Application for Final Orders filed 9 May 2011;

   ·    Response to an application in the case filed on 23 June 2011; 

   ·    Affidavit of the mother sworn 20 January 2011; 

   ·    Affidavit of the mother sworn 6 June 2011;

   ·    Affidavit of Ms C McPhearson sworn 21 June 2011; 

   ·    Affidavit of Ms B sworn 16 June 2011;  and

   ·    Affidavit of Mr F. 

Submissions 

Independent Children's Lawyer

1. The independent children’s lawyer does not oppose the child spending holiday time with the father in Country E as he proposes.  The independent children’s lawyer submitted the child should be returned to Australia by 18 July 2011 in good time for the interviews with the family consultant, necessary for the family report for the final hearing. He submitted the Court’s concern, if any, about the possibility of the father not returning the child to Australia ought be tempered by knowledge that Country E is a convention country, under what is generally described as the Hague Convention.

2. The independent children’s lawyer submitted that one of the matters to be considered in the final hearing is whether the child should live in Country E with her father.  He submitted that the holiday trip may produce valuable evidence to assist the Court in that determination.

The Father 

1. The father’s Counsel, Mr Dura told the Court that the father proposed returning the child to Australia by 15 July 2011.The address of the property where the child will be staying is that pictured in exhibit “F2”.  The address in the passport application for the child is the father’s postal address.  The residential address is K Street, Suburb L.  The father’s Counsel drew my attention to paragraph 22(c) on page 28 of the maternal aunt’ affidavit.  In that paragraph the maternal aunt advised that the child spent from 9 April to 19 April this year staying with the maternal grandmother and did not see her mother during that period.  Given that she can only see her mother on Sundays, that period must have stretched to 15 days.

2. The father’s Counsel referred me to paragraph 45 of the maternal aunt’s affidavit.  In that paragraph the maternal aunt says that on 9 June 2011 at 8.30 am, in the presence of the maternal grandmother, the father had said to her, “I don’t care, it is what I want that matters. The Court and I have proved that your lot are not fit to look after the child. When I take the child back to [Country E], you and your lot will never see the child again, she will not come back to Australia.”  It is submitted this raises a serious allegation, namely, that the father has threatened not to return the child should he be permitted to take her to Country E for school holidays.

3. The father’s Counsel submitted that notwithstanding the seriousness of the allegation, when the maternal aunt and the maternal grandmother met with the family consultant on 14 June 2011(five days later) for the specific purpose of exploring whether the child should go to Country E with the father during the school holidays, neither of them had raised a concern about him failing to return the child.  It is further submitted that in the maternal grandmother’s affidavit, sworn 16 June 2011, there is no mention of the alleged conversation.  That last submission is not quite correct. 

4. The maternal grandmother, at paragraph 44, said she was present on 9 June 2011.  She said she walked the child to the car; she said the maternal aunt and the father were having a conversation about five metres away.  The only words she heard were Ms C saying, “[Mr Denis], why are you being so unreasonable?”  I note that on 9 June 2011 the father complained through his solicitor via letter to the respondents’ solicitors about the maternal aunt’s words to him on that occasion.  The maternal grandmother denies she heard raised voices, that denial being directed to the material contained in the subject letter from the father’s solicitor to the respondents’ solicitor.

5. The father, through his Counsel, denies the words alleged by the maternal aunt were said by him.  The father’s Counsel submits that the father’s commitment to his daughter is evident in his actions since December 2010.  This submission is made as the mother in her affidavit gives extensive evidence about the father not having demonstrated apparent interest in the child since mid-2005.  The affidavit attests to complete lack of face-to-face time with the child, and failure to provide financial assistance (child support).  In fact, the mother’s case is that the father was deliberately misleading in information he provided to the Child Support Agency when the mother sought a child support assessment to issue.

1. The father’s Counsel pointed to the time the father has spent in Australia this year, the funds he has provided for accommodation, and his engagement in these proceedings.  It is submitted that this must surely demonstrate commitment by the father to his daughter.  In relation to the respondents seeking the father supply a surety if he is permitted to take the child overseas, the husband’s Counsel says it should not be necessary.  If it is required, the father would submit $15,000 would be sufficient.  The respondent seeks a surety of $30,000.

The Respondents

1. The respondents’ submissions were delivered by their Counsel, Mr Schonell SC.  He submitted there is a heavy onus on parties seeking to remove a child from Australia.  The respondents submitted that it has not been possible for them and the Court to be satisfied that the father does not have a criminal record of concern in Country E.  It was submitted that the Court does not know enough about the father to be confident he would return the child if permitted to take her to Country E as he proposes.

2. In relation to the father’s alleged criminal history in Country E, I note that a document has been returned pursuant to inquiries made by the independent children’s lawyer and authorities provided by her.  That document does not indicate any convictions in relation to the father or any known history which would be of concern in relation to this application.

3. It is submitted that very little is known about the father.  He is said to own four businesses, racehorses and a residence.  However, no evidence has been provided as to ownership of any of those items or entities.  A specific request was made for documents identifying those assets.  However, it had been refused on the basis that it was not relevant.

4. I note that the father, in refusing to provide those details, referred to the request being relevant apparently to a proposed action the mother was considering in respect of a property claim, rather than legitimately requesting information relevant to the children’s issues.

5. The passport application for the child discloses an address for the father which is different to the address identified in exhibit “M1”.  It is therefore unclear where he resides.  So submits the respondents.  The respondents referred to exhibit “M3” which recited the father had been residing with Ms M at N Street, Suburb O.  The respondents say that Ms M has denied that (see hearsay conversation referred to in the affidavit of Ms McPhearson).  The respondents submit these matters go to veracity and suggest the father is being untruthful. 

6. The respondents drew the Court’s attention to paragraph 61 to 63 of the mother’s Affidavit sworn 20 January 2011.  The mother recites that the father told her he had spent three days before the Country E crime commission.  At paragraph 83 of that affidavit, the mother says that the father has failed to pay any child support for the child.  At page 21 of the mother’s Affidavit of 4 June 2011 at paragraphs 22 and 24, the mother attests to a conversation with the father’s partner, Ms P, wherein she was told that the father works and drinks.

7. I was referred to the allegation of the mother and the maternal aunt where they say that the father told them he had been in gaol for killing a person in a car accident.  The respondents point to the father’s own evidence in his affidavit of 6 January 2011 at paragraph 62.  This sets out his explanation/disclosure of what occurred when he was apprehended at Brisbane International Airport, and thereafter charged with making a false declaration about the imported goods. 

8. I am urged to compare what the father has said in his affidavit on this point with what the father has said in his oral evidence and what a transcript of the proceedings before a Brisbane Court disclose.  The disparity extends to his being fined twice that which he had sworn to.  The respondents point to exhibit “M4”, where the husband was asked to sign an authority directed to Country E authorities to provide details as to any criminal history or history of convictions the father might have in Country E.  The father declined to sign the authority (I note that the father’s reason for so declining was that he had supplied a similar authority to the independent children’s lawyer and he understood the independent children’s lawyer was already in correspondence with authorities in Country E, based on that authority signed by him).

9. The respondents rely on the affidavit of Mr F, in particular paragraphs 43 and 44.  This appears to be an alleged “rant” by the father expressing his dissatisfaction with Australia as a place to live and raise the child.  The respondents point out that the child has not spent more than two nights consecutively with the father.  It is therefore unknown how she would cope with up to fifteen days in his care.  The respondents ask rhetorically, what is the necessity of a trip to Country E? The father could spend extended time with the child here in Australia.  The mother raises a concern that she may not see the child for a two-week block (or maybe even twenty-one days given that she can only be seen on a Sunday).  I note this was not a concern for the mother when it was proposed the child would spend the holiday period with the maternal grandmother at H Town.

Conclusion 

1. In my view, the child should have the opportunity to have a holiday in Country E with her father.  As the family consultant said, children of the child’s age would normally be expected to be excited about such a trip (the family consultant said her school friends would find the news of such a trip for the child exciting as well).  The family consultant having carefully weighed up the advantages and disadvantages of such a trip for the child considers that on balance she has more to gain than to lose.  There is the opportunity for her to further her relationship with her brother and stepbrother and the father’s partner, Ms P. I accept that evidence.

2. The family consultant considered the child would benefit from a block period with her father.  Although the child has not spent more than two consecutive nights with her father, she does spend three nights each week with him, and he takes her to school and collects her from school most days of the week.  It is clear from the family consultant that the child is comfortable in her father’s care.  The family consultant is clearly very concerned about the impact on the child’s relationship with her father of the negativity of the maternal family towards the father, especially the maternal aunt, who the child is assessed to be close to.

3. The trip will have the benefit of assisting the Court to assess if the maternal family are capable of providing good support to the child to continue and expand her relationship with her father and his family.  Many of the matters raised by the respondents in submission are matters which no doubt will play a significant role in the Court determining where the child should live in the future.  As I understand the maternal family’s case, it is that the child should have a good and close relationship with her father, however, she should continue to live in Australia with the family members.

4. Even if it ultimately be the determination of the Court that the child should live in Australia with the respondents, it does not seem to be part of the respondents’ case that the child should not be able to holiday in Country E with her father and his family at any time in the future. 

5. As stated earlier, the respondents submit there is a risk the father will not return the child to Australia.  I assess that is a small risk.  The father has invested a great deal of time and apparently money in pursuing what he considers an appropriate arrangement for the care of the child, given the mother’s current incarceration.  In any event, I propose to require the father to provide cash surety of $20,000 as a security against his failure to return the child. It is also acknowledged by the respondents that Country E is a signatory to the Hague Convention (The U.N. Convention on Civil Aspects of International Child Abduction).

6. I consider the trip to Country E as proposed by the father to be in the child’s best interests.

7. The father must know that if he failed to return the child as the Court orders require, he would face proceedings in his own country under the Hague Convention.  He would also be likely to considerably damage his case for residential care of the child.  In order to assist in any Hague Convention case that may be required, and by way of further security, I will require the father provide a written undertaking to the Court to return the child to Australia.  I will provide orders for contact between the child and her maternal family whilst the child is in Country E.  Once again, this will not only be in the best interests of the child, it will also establish evidence that the father can organise such contact, which will be an important matter for the Court to know in relation to the final determination in this case.

8. I therefore make the orders set out earlier in these reasons. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 28 June 2011.

Associate:

Date:  6 July 2011