Dhaliwal & Suri
[2022] FedCFamC1F 876
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dhaliwal & Suri [2022] FedCFamC1F 876
File number(s): SYC 6206 of 2019 Judgment of: CAMPTON J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – PARENTING – Discrete issues – Where the parents have reached agreement as to all aspects of the parenting of their three children, save as to international travel – Where the father seeks orders permitting he and the mother to travel with the children outside Australia during school holidays – Where the mother has concerns that the father will abscond with the children and hence seeks that no orders be made as to international travel – Where the parties have Country D heritage but are Australian citizens – Where the family has strong ties to Australia – Where the risk of the father absconding with the children is assessed as low – Consideration of security – Orders made permitting international travel, together with final orders made by consent regulating all other aspects of the children’s parenting. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 64D, 65Y
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] 34
Isles & Nelissen [2022] FedCFamC1A 97
Line & Line (1997) FLC 92-729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Division: Division 1 First Instance Number of paragraphs: 74 Date of hearing: 20 October 2022 Place: Sydney Solicitor for the Applicant: Mr Parker, Toronto Legal Counsel for the First Respondent: Ms Haughton Solicitor for the First Respondent: Brydens Lawyers Solicitor for the Second Respondent: Mr Buckley, Buckley Lawyers Pty Ltd Solicitor for the Independent Children's Lawyer: Mr Naidovski, Sydney West Family Lawyers ORDERS
SYC 6206 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DHALIWAL
Applicant
AND: MS SURI
First Respondent
MR A DHALIWAL
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
11 November 2022
The Court orders that:
1.All prior parenting orders in relation to X born on … 2009, Y born on … 2012 and Z born on … 2013 (“the children”) are discharged.
By consent the court orders that:
Parental responsibility
2.The parties have equal shared parental responsibility for the children.
Living arrangements
3.The children live with the mother.
Time with the father
4.The children spend time with the Father as follows:
(a)Each alternate weekend from 4:00 pm on Friday to 5:00 pm on Sunday;
(b)On Father’s Day each year, from 10.00 am to 5.00 pm; and
(c)At all other times as agreed between the parties.
5.During the Term 3 2022 school holiday period, the father’s usual time with the children shall be suspended, and the children shall spend half of the school holiday period with the Father as agreed between the parties, however failing agreement, on the first half of the school holiday period.
6.During the Term 4 2022/2023 school holiday period, the father’s usual time with the children will be suspended and the children shall spend time with the father as follows:
(a)From 3:00 pm, 20 December 2022 to 9:00 am 24 December 2022;
(b)From 3:00 pm 5 January 2023 to 9:00 am 9 January 2023;
(c)From 3:00 pm 19 January 2023 to 9:00 am 23 January 2023.
7.The children shall spend time with the father as follows, noting that the mother’s usual time with the children will be suspended during the Christmas period from 2023 onwards:
(a)From 9:00 am on Christmas Eve to 2:00 pm on Christmas Day in odd numbered years;
(b)From 2:00 pm on Christmas Day to 7:00 pm on Boxing Day in even numbered years.
8.The children’s time with the father in Orders 4 and 6 above shall be suspended and the children shall spend time with the mother as follows:
(a)During the Christmas period from 2023 onwards:
(i)From 2.00 pm on Christmas Day to 7.00 pm on Boxing Day in odd numbered years;
(ii)From 9.00 am on Christmas Eve to 2.00 pm on Christmas Day in even numbered years.
(b)On Mother’s Day each year from 10.00 am to 5.00 pm.
9.Subject to Orders 4, 7 and 8, from the commencement of the 2023 school year, the father shall spend time with the children as follows:
(a)For the first half of the Term 1, 2 and 3 school holiday period commencing from the last day of the school term for seven (7) consecutive days; and
(b)During the Term 4 school holiday period from the last day of the school term for seven (7) consecutive days and each alternate week about period thereafter until the children return to school in January 2024.
10.Subject to Orders 4, 7 and 8, from the commencement of the 2024 school year and each year thereafter, the father shall spend time with the children as follows:
(a)For the first half of each school holiday period in even numbered years commencing from the last day of the school term; and
(b)For the second half of each school holiday period in odd numbered years.
11.For the purposes of changeover where changeover does not occur at the school, the Father will collect the children from the mother’s residence at the commencement of his time with the children and the Mother shall collect the children from the father’s residence at the commencement of her time with the children.
Information sharing
12.That the parties shall ensure that the children attend tutoring and extracurricular activities as scheduled, during their time with the children.
13.That the parties may communicate with the children when the children are spending time with the other party on a liberal and flexible basis as agreed.
14.That both parties shall advise each other and keep each other advised of the current address and telephone numbers including landline (if applicable) and mobile telephone numbers and advise each other of any changes in these details within 24 hours of such change occurring, subject to any Apprehended Domestic Violence Orders being in effect.
15.That each party shall notify the other as soon as reasonably practical of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
16.That the parties are to keep each other informed of any general medical issues regarding the children including prior notice be given in relation to any procedures or operations to be undertaken and communication of any such general medical issues is to occur at point of change over.
17.That the parties shall each follow all reasonable directives of the child’s treating medical practitioners and ensure that they each comply with all guidelines in relation to the management of the children’s health.
18.That these orders constitute authority for the parties to each liaise with the children’s treating medical practitioners and obtain information about any treatment and any other medical issues.
19.That these Orders constitute authority for the parties to liaise with the children’s school teachers and staff to discuss the children’s development any concerns about the children’s schooling.
Other orders
20.That both parties will be entitled to attend, particularly if the event falls in their time, and ensure that is organised, all events involving the children, including but not limited to:
(a)Sporting events;
(b)Extra-curricular activities;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sport days, parent teacher interviews, canteen duties and social functions.
21.As agreed between the parties and provided that there is reasonable notice and confirmation of an RSVP date from one parent to the other in writing about the specific details of an event, including the time, date, venue and attendees, the children shall be entitled to attend:
(a)Birthdays;
(b)Weddings;
(c)Engagements; and
(d)Funerals.
Restraints
22.That both parties are restrained from publication of the proceedings on social media.
23.That the parties shall not denigrate the parties or a member of their extended family in the presence or hearing of the children and shall immediately remove them from the presence or hearing of any third party who does so.
24.That each party is not to question the other party about the children’s time with the other.
Passports
25.That within 14 days of the date of a request to do so, each parent will sign all documents and do all acts and things necessary including each meeting half of the costs to cause an Australian passport to be renewed and issued in the names of each of the children and the parents shall thereafter do all things so as to ensure that each child’s passport remains current until they each reach the age of 18 years; and
26.That the mother will hold the passports for the children.
27.The mother will provide the children’s passports to the father within 14 days of his written request that she do so for the purposes of travel pursuant to these orders or as agreed by the parents in writing.
28.The father shall return the children’s passports to the mother within 14 days of his return to Australia.
And on a defended basis, the court further orders that:
29.That pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”), each of the parents are authorised to remove the children from the Commonwealth of Australia, provided that:
(a)Unless otherwise agreed by the mother and father in writing, the proposed travel with the children shall occur within the school-holiday time in which the children would otherwise be in their respective care pursuant to Orders 9 and 10 herein and such travel shall not occur before 1 January 2024; and
(b)Not less than 60 days prior to the proposed departure date, the travelling parent shall provide to the other parent written notice of:
(i)Proposed departure and return dates;
(ii)Flight details, including airline(s), forward and return flight details;
(iii)An itinerary of where the children will be staying and name(s) of any other person(s) attending;
(iv)Contact details for all accommodation; and
(v)Proof of travel insurance with medical and medivac cover for the children and the travelling parents; and
(c)Not less than seven days prior to the proposed departure date, the travelling parent shall provide to the other parent copies of return airline tickets booking and written confirmation of payment for the return airline tickets; and
(d)Not less than 28 day prior to the proposed departure date the travelling parent shall cause the sum of $25,000 (“the security payment”) to be transferred into the trust account of the travelling parent’s nominated solicitors by way of security, and the travelling parent shall be restrained from causing or permitting any dealing in respect of such sum other than in accordance with these Orders; and
(e)The travelling parent shall do all things to provide their nominated solicitor with a copy of these orders and to cause their nominated solicitor to advise the non-travelling parent in writing of the fact and quantum of the security payment; and
(f)Forthwith upon the children returning to the non-travelling parent’s care in accordance with these orders (at the conclusion of their international travel), the requirement for the security payment for that travel pursuant to Order 29 (d) shall stand discharged such that the travelling parent shall be at liberty to recover and deal with the security payment; and
(g)In the event that the children are not returned to the non-travelling parent’s care in accordance with these orders, then by this order the travelling parent irrevocably authorises and directs their solicitors to forthwith pay to the trust account of the solicitors for the non-travelling parent the security payment and the non-travelling parent shall thereafter be at liberty to apply the security payment to legal costs and disbursements incurred in relation to and as a consequence of the travelling parent’s failure to comply with these Orders.
30.The mother and the father are hereby restrained from taking the children, or facilitating the children’s travel, save and except as agreed by them in writing or pursuant to a further Order of the Court, to a country that is:
(a)Subject to a level three or above Department of Foreign Affairs and Trade warning; and/or
(b)Not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
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 Dhaliwal & Suri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Mr Dhaliwal (“the father”) and Ms Suri (“the mother”) married in 2000. The mother contends they separated in September 2015. The father contends they separated in June 2019. They have three children, namely:
(a)X (“X”), who was born in 2009 and is currently aged 12;
(b)
Y (“Y”), who was born in 2012 and is currently
aged 10;
(c)
Z (“Z”), who was born in 2013 and is currently
aged 8.
Proceedings as to the parenting of the children commenced in the Federal Circuit Court by the father filing an Initiating Application on 16 September 2019. When the proceedings came before me for case management on 23 September 2022, the parents and the Independent Children’s Lawyer had been able to resolve most of the parenting matters in dispute between them. By consent and pending further order, orders were made on that date in accordance with a Minute of Order that became Exhibit 2.
At the final hearing before me on 20 October 2022, it was agreed that orders should be made on a final basis in accordance with Exhibit 2. I will make those orders with the consent of the parents and the Independent Children’s Lawyer (“the consent orders”). Broadly, the consent orders provide for:
(a)The parents to have equal shared parental responsibility for the children;
(b)The children to live with the mother and spend time with the father as follows:
(i)During the school term, on each alternate weekend from 4.00 pm on Friday to 5.00 pm on Saturday;
(ii)On father’s day each year from 10.00 am to 5.00 pm;
(iii)During prescribed times during the Christmas periods;
(iv)In 2023 for the first half of the Terms 1, 2 and 3 school holidays, and in a week-about arrangement during the Term 4 school holidays; and
(c)From 2024 onwards, for the first half of each school holiday in even numbered years and for the second half of each school holiday in odd numbered years.
During the course of the hearing, the parents and the Independent Children’s Lawyer further agreed to consent orders being made in the following terms as to the children’s passports:
(a)That within 28 days of the date of these orders, the parents shall do all things to cause the children’s expired Australian passports to be renewed and obtain, with each parent to equally contribute to the costs of that process; and
(b)The parents otherwise do all such things as are necessary to maintain current passports for the children until they reach the age of 18 years; and
(c)The mother, as between the parents, retain the possession of those passports subject to any further order.
At the conclusion of the trial, the parenting issue for determination was whether the parties should be permitted to travel internationally with the children and if so, the terms of that travel. Broadly, the father sought that the parents each be permitted to take the children outside of Australia on terms that altered and refined over the course of the trial. The mother opposed any orders to permit the children or any of them to travel outside Australia. The Independent Children’s Lawyer supported the father’s proposal but with additional terms.
For the reasons that follow, in addition to making the above consent orders, further orders shall be made permitting each parent to travel internationally with the children, provided they do so during school holiday periods in which the children are spending time with the travelling parent pursuant to the consent orders, that such travel not occur until 1 January 2024, and that as a condition of travel the travelling parent pay to their nominated solicitors trust account a security sum of $25,000. A further order will be made restraining the parents from travelling with the children to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
The s 79 property dispute remains listed for further trial management today. The paternal grandfather remains a party in the property adjustment proceedings. It is anticipated that the financial dispute will be listed for trial in the near future.
The competing positions
At the commencement of the trial, the father sought orders in terms of Exhibit 4, such that each parent be permitted to take the children out of Australia for one period of up to six weeks in each two year calendar period, providing that:
(a)The other parent provides written consent;
(b)The travelling parent provides the other parent at least 14 days’ notice as to the details of the travel, including proposed departure and return dates and an itinerary of the travel including accommodation and contact details; and
(c)The travelling parent provides the other parent a copy of return airline tickets at least no less than seven days prior to the proposed departure date; and
(d)The parties have agreed on make-up time for the non-travelling parent.
The father sought a further order that in the event the travelling parent provides to the other parent
60 days’ notice of their plans to travel with the children (including details as to the dates of travel, flight and accommodation details, and proof of medical and travel insurance for the children), the other party shall consent to the proposed travel.
The Independent Children’s Lawyer sought orders in the same terms as sought by the father and sought an additional order as contained in Exhibit 5 that:
The parties be restrained from taking the children outside of the Commonwealth of Australia to a country:
i. subject to a level 3 or above Department of Foreign Affairs and Trade warning;
ii. not a signatory to the [Hague Convention].
Each of the parents were born in Country D and, as will be explained later in these reasons, have some remaining connections and family in Country D.
The Hague Convention is broadly an international treaty between countries that provides a framework for the prompt return of children where it is alleged there has been a wrongful removal or retention of them from their country of habitual residence. Australia is a signatory to the Hague Convention. The parents and the Independent Children’s Lawyer agreed that Country D is not a signatory to the Hague Convention.
During his oral evidence, the father said that he would agree to the additional Order as sought by the Independent Children's Lawyer restraining the parents from travelling with a child to a country that is not a signatory to the Hague Convention. Hence, by way of the amended position of the father (as sought by the Independent Children’s Lawyer), the children travelling internationally to Country D could only occur by agreement in writing between the parents or a further application to the Court, unless Country D became a signatory to the Hague Convention.
Further, during the course of the trial the father:
(a)Modified his relief such that any international travel undertaken by either parent would occur only during school holiday periods, at times when the children were spending time with the parent proposing the international travel pursuant to the proposed consent orders identified earlier in these reasons; and
(b)Conceded, and the Independent Children’s Lawyer did not oppose, a moratorium on any international travel by the children occurring prior to the commencement of the 2024 calendar year.
The mother opposed any orders as to the children undertaking any international travel until they each achieve 18 years of age. She said that any future travel of the children, with either parent and for any period or on any terms, ought to be the subject of a discrete application identifying with precision the specific international travel event to be undertaken by the children and clearly stating any other conditions attaching to that travel. Without concession, the mother said in her oral evidence that if there was to be an order permitting the children to travel internationally with the father, such an order ought to provide a mirror for the children to travel with her on the same terms. Both the father and the Independent Children’s Lawyer agreed to this alternate position.
Evidence
The father did not rely on any documents. He lead evidence in chief and was cross-examined.
The mother did not rely on any documents, save for paragraph 26(h) of her affidavit dated
13 December 2019, which records the following:
(h) In 2007, [the father] and I returned to [Country D] to visit relatives, however, [the father] returned to Australia after 1 month and took my passport. [The father] did not provide me with any money and I did not have any access to funds. I was chaperoned by [the father’s] family and I was unable to contact my family in [Country D] directly, as [the father’s] family would make contact and speak on my behalf. I stayed with [the father’s] relatives until my return to Australia in [mid] 2009, being approximately 3 months before the birth of our first child.
(As it was recorded)
She lead evidence in chief and was cross-examined.
The Independent Children’s Lawyer relied on the Child Inclusive Conference Memorandum dated 20 July 2020. That report became Exhibit 6. The Court Child Expert was not required for cross examination.
Background
The father was born in Country D in 1972. He is currently 50 years of age. He said that he moved to Australia when he was in his early teenage years and has lived in this country from that time. He has been an Australian citizen for more than twenty years. He currently works as a staff member at B Company.
The mother was born in Country D in 1977. She is currently 45 years of age. She moved to Australia after she and the father married. She is an Australian Citizen. She currently works for C Company.
The parents married in 2000 in Country D.
The children were all born in Australia, are Australian citizens and have previously held Australian passports, although those passports are now expired.
During their relationship the parents travelled with the children internationally. Their recollection of when that travel occurred was vague. The mother identified at three occasions when the family travelled to Country D, the first being when X was one year old, the second being when X was four or five years old and Y two or three years old, and the third being in or around early 2015 for a wedding. On the last occasion the family remained in Country D for two months. The father did not put this evidence into issue and I so find.
Additionally, the parents travelled together with the children to the United States of America (“USA”) in 2019 for four or five weeks. They visited members of the father’s family. On the mother’s case, this travel took place while she and the father were separated.
The oral evidence
Having regard to the mother’s evidence as recorded in paragraph 18 above, albeit that the father gave his oral evidence first in time before the mother at the hearing, it is appropriate for the purpose of these reasons to consider the mother’s evidence first.
The mother’s evidence
The mother said that there were two historical reasons grounding her resistance to the father travelling with the children are:
(a)That in 2007, following a trip that she, the father and the paternal grandfather took to Country D, the father left the mother in Country D and either he, or he by way of the agency of his family, prevented her from leaving Country D for a period of greater than two and less than three years. It was her oral evidence that the father or paternal grandfather had possession of her passport for that period and refused to return it; and
(b)That the paternal family have a “history” of retaining people in Country D, She said that when the father was a child he was obliged to return to Country D for a number of years notwithstanding that his family had migrated to Australia. Her evidence on this contention was scarce and speculative. She did not call any witness to give direct first-hand observation or knowledge evidence as to this allegation. It was not put the father in cross examination.
It was her primary and strongly-held concern that if the father were permitted to travel with the children he would not return them to Australia.
The mother in her oral evidence said that she and the father had organised a trip to Country D together to visit their families in late 2007. At the time she was employed in Australia and took one-month of leave from work. After one month of being in Country D, the father returned to Australia but refused to take the mother with him.
The mother was cross-examined as to paragraph 26(h) of her affidavit dated
13 December 2019. The mother rejected that the purpose of the 2007 trip was to visit and care for her unwell father. She accepted that her father had fallen sick while she and the father were in Country D. In cross examination the mother made it clear that she did not say that the father had detained her in Country D, but that such detention was a product of the father having the possession of her Country D passport at the time. She did not give evidence of asking for the passport to be returned. The mother said that she had no other identification documents that would have enabled her to obtain another Country D passport notwithstanding she was physically present in Country D.
The mother volunteered in cross-examination that during greater than two and less than three year period she was detained in Country D staying with the father’s uncle and his family she had visited her own family (her parents) on two or three occasions, for no more than four or five days at a time. Her family lived in the north of Country D, being approximately an hour and a half away from the paternal family with whom she was residing. I enquired of the mother whether she had asked her family to assist her in returning to Australia. Her evidence in response was vague, the import of it being that she was, for cultural reasons, required to remain with the father’s family in Country D and that her own family would not have been able to, or would not have, helped or assisted her to leave.
It emerged during the course of the mother’s oral evidence that the father returned to Country D for three extended periods during the time that she said he made her remain in that country. She deposed that X was conceived in Country D and that she had anticipated the child would be born in Country D. The mother returned to Australia with the father in about mid-2009. In her oral evidence she said that the only reason they returned to this country was because the father and the paternal grandfather were insistent that the paternal grandfather be present around the time of X’s birth, and that the paternal grandfather was living in Australia and unable to travel to Country D at that time.
The mother said that all of her family have now emigrated from Country D and are living in Country E, save for her oldest sibling.
When the mother was asked whether there was anything that the father could do to ease her concerns as to the father not returning the children to Australia (for example, requiring that he pay security prior to any international travel), she immediately responded without a moment of hesitation that there was not. She accepted that she does not have any real issue with the form of the order the father was seeking, and that it was merely the fact of the international travel that causes her significant discomfort.
The father’s evidence
The father’s evidence was that he wished to take the children to both the United States of America (“USA”) and to Country D. He said that although the children had previously visited Country D they were very young at the time and had no material memory of the trip (this was somewhat inconsistent with the 2015 trip for two months for a family wedding, the two older children being around six and four years old at that time). He hoped to give the children some experience of their Country D heritage in another culture by them spending time with his family in the USA. Additionally the father expressed a desire to “expose the children to a broader world” and cultures other than their own.
The father strongly denied that in 2007 he in any way prevented the mother from returning to Australia following a trip that they took together to Country D. He rejected the mother’s contentions that he had taken her passport and not allowed her to access funds. He implicitly suggested to the mother that she was accessing his bank accounts during that time. While he accepted that the mother while in Country D had lived with his family for “cultural” reasons, he denied that he only “permitted” the mother to return to Australia to give birth to X in circumstances where the paternal grandfather lived in Australia. It was his evidence that the mother elected to remain in Country D because her father, the maternal grandfather, became ill. He did not explain in his evidence why, in circumstances where the mother’s father was ill, she did not reside with and assist her father, at the time and lived with his uncle.
The father expressed some residual concern that the mother, if she was to travel to Country D, may potentially retain the children there to stop them from being with him. He was not aware as to the fact of the Hague Convention, Australia being a signatory to it and Country D not, prior to his oral evidence.
When questioned on what, if any, ties the father has to Country D, he said that most of his cousins now live in the USA and that otherwise his family lives in Australia. His father’s brother remains living in Country D. He said that all of his “affairs” are in Australia, for example, he works and owns property in Australia. By contrast it was his strong contention that “there is nothing for us [in Country D]”. I accept that evidence, it not being materially challenged by the mother.
I explored with the father his proposed mechanism for international travel. It was clear that he did not have a solid understanding of the orders he sought. When asked, he accepted that throughout the course of the litigation and until the recent consent orders he and the mother were not able to agree on “anything” in relation to the parenting of the children and hence would be unlikely to agree on any make up time should one of the parents travel with the children for an extended block, as would be required by his proposed orders. He accepted that it would be preferable for any travel with one parent to occur within the time that the children will be spending time with that parent during school holidays pursuant to the consent orders. He agreed that he had no immediate international travel plans for the children, that such travel could not realistically occur until the financial case was finalized and that it was in the children’s best interests to permit the freshly entered consent parenting regime to bed in for
12 months before any international travel occurred.
The law and discussion
The objects of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B form the framework for the part of the Act dealing with parenting.
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
Section 65Y(1) of the Act provides that there are parenting orders in force relating to the parental responsibility for a child, or the time that child is to spend with a person, then a party to proceedings in which that order was made must not take the child outside of Australia unless permitted by subsection (2). In this matter, consent parenting orders will be made in accordance with Exhibit 2 and therefore s 65Y applies. Subsection (2) provides that:
(2)Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a)it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b)it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
By operation of the Act, each of the parents would be restrained from taking the children outside of Australia without the written consent of the other or an order of the Court.
Orders permitting parties to travel with children outside Australia are parenting orders within the definition of s 64D(2)(i) of the Act and hence attract the mandate provided by s 60CA of the Act, being that the Court must regard the best interests of a child as the paramount consideration when deciding whether to make a particular parenting order.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
The primary considerations (under s 60CC(2)) are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In the application of s 60CC(2) I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
It is plain from a reading of the Child Inclusive Conference Memorandum that the children have a loving relationship with both the mother and father. By way of the final orders which will be made in accordance to Exhibit 2, the children will live with their mother and spend significant and substantial time with their father, which I am satisfied will enable them to benefit from a meaningful relationship with both of their parents.
The mother has historically made significant allegations of family violence having been perpetrated by the father towards her. The Child Inclusive Conference Memorandum records those allegations as follows:
7.There was an Apprehended Violence Order (AVO) against [Mr Dhaliwal] to protect [Ms Suri] for a period of 12 months. This AVO has just expired in early July 2020. [Mr Dhaliwal] conceded to having monitored [Ms Suri] via audio recordings from electronic devices he placed in her bedroom.
8.[Ms Suri] alleged that, pre and post-separation, [Mr Dhaliwal] pushed, grabbed and slapped her; frequently sexually abused her; threatened her; did not support her to get Australian citizenship; retained her passport; made her stay in [Country D] for extended periods; stalked her; left recording devices in her bedroom; hacked into her emails and phone; monitored her call logs; monitored her movements; socially isolated her; accused her of having affairs; gave her the silent treatment; financially abused her; does not contribute to the costs associated with raising the children; and criticised her and called her names.
9.[Ms Suri] alleged that, pre and post-separation, the paternal grandfather socially isolated her, yelled at her in front of the children and called her names. She alleged that [Mr Dhaliwal] and the paternal grandfather would not allow her to have the right to make decisions regarding her body and pregnancies.
10.[Mr Dhaliwal] said that there was no family violence between him and [Ms Suri] except for him recording [Ms Suri] without her consent. He said that he and [Ms Suri] both engaged in arguments and said things, which they should not have said.
Save for that he made her stay in Country D from 2007 until 2009, none of the above matters were the subject of evidence in chief from the mother or put to the father in cross-examination.
Findings as to the mother’s residence in Country D
The mother’s allegation as to the father refusing to allow her to return to Australia in 2007, if established on the evidence, would amount to a serious act of family violence as defined by
s 4AB of the Act. Section 4AB(2)(j) expressly defines unlawfully depriving a family member of his or her liberty as behaviour constituting family violence.
In Pt VII proceedings, findings that one parent has engaged in family violence against another can have significant impacts on the matters the Court is required to consider under
ss 60CC(2)(b) and 60CC (3)(f)(i)(j) and (m) of the Act. In the context of this dispute, what is in the best interests of the children may hinge on findings in relation to the mother’s allegation that the father compromised her liberty by forcing her to remain in Country D against her wishes.
The Court is obliged not to make positive findings as to this allegation made by the mother unless it is so satisfied to the requisite degree having regard to the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” (M v M (1988) 166 CLR 69 (“M & M”), citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). The Court’s reasonable satisfaction “should not be produced by inexact proofs, indefinite testimony or indirect inferences”. As was clarified by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97, past allegations of violence and abuse are to be determined by reference to s 140 of the Evidence Act 1995 (Cth).
The mother must discharge the evidentiary onus to the requisite standard that the father prevented her from leaving Country D between 2007 and 2009 as alleged. The mother’s evidence on this subject matter contained ambiguities as identified earlier in these reasons. Her evidence was that she consented, at least initially, to travelling to Country D. She did not detail when the father allegedly took her passport from her. She said that it may have been the paternal grandfather who retained her passport at immigration when she entered the country and then did not return it. She did not give evidence of requesting the return of the passport or of any request of the father to facilitate her return to Australia. Similarly, she did not provide any documentary or corroborative evidence to suggest that she had made any attempts to return to Australia or to obtain a new or replacement passport. It was open to the mother to adduce evidence from either the paternal family or her own family to support her case on this subject matter, however she did not do so. Her affidavit evidence recording “I was unable to contact my family in Country D directly, as [the father’s] family would make contact and speak on my behalf” was inaccurate. She said she spent some occasions for periods of four or five days with her parents. As identified earlier, the hazy evidence given by the mother as to why she was required to remain with the father’s family in Country D and that her own family would not have been able to, or would not have, helped or assisted her to leave that country and return to Australia further clouded the reasons underscoring the fact and terms of her presence in Country D from 2007 until 2009.
In circumstances of the seriousness of the mother’s allegation against the father as to her detention in Country D for close to three years, I am not satisfied that the inexact evidence in support of the allegation and the deficiencies in the mother’s case permit the making of the finding sought on this subject matter. Further, where the mother give no direct oral evidence in chief as to the matter recorded by the Court Child Expert in Exhibit 6 and such matters were not put to the father in cross examination, I am not satisfied that the mother has discharged the evidentiary onus to ground findings as to those matters. I reject the bald assertion made by the mother that the paternal family have a “history” of retaining people (including the father himself) in Country D in circumstances where that assertion is not supported by evidence.
I am not satisfied on the evidence that a finding can be made that the father engaged in family violence within the definition of s 4AB of the Act save as to him recording the mother as conceded in Exhibit 6. The mother did not contended that the father’s alleged conduct posed an ongoing risk to the children. Implicitly, the parents have accepted by their entry into the proposed consent orders that neither parent poses a risk of harm to the children and I so find.
Additional considerations
In addition to s 60CC(2), s 60CC(3) sets out further considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case and have not been identified earlier in these reasons.
Further to the relevant s 60CC considerations, the Full Court in Line & Line (1997)
FLC 92-729 held that I am required to assess the degree of risk, if any, of the children not being returned to Australia if they are permitted to travel internationally and set out the considerations to which I ought turn my mind in assessing that risk of non-return, as follows:
(a)The existence or otherwise of continuing ties between the travelling parent and Australia;
(b)The existence and strength of possible motives of the travelling parent not to return;
(c)The existence and strength of possible motives of the travelling parent to remain in the other nominated country; and
(d)Whether the country of travel is a signatory to the Hague Convention.
I am satisfied that each of the parents’ primary ties are to Australia. They each have lived in Australia for many years, including for the whole duration of the children’s lives, and are citizens of Australia. As recorded above, the father has work ties and family in Australia. The mother also works in Australia.
The mother has family who now live in Country E. She expressed no desire to relocate there to be closer to them. She was firm in her evidence that she wants to raise the children in Australia, consistent with the relief she seeks. The father has family in the USA but he too was adamant in his belief that it is in the children’s best interests to grow up in Australia. I accept each of their evidence on these matters and so find. There was no evidence of either the mother or the father having rights to live in Country E or the USA.
Given that the parents are of Country D heritage and that the father expressed a desire to take the children to that country, it is relevant that Country D is not a Hague Convention country. However, as recorded, the father’s amended position was that each of the parents should be restrained from travelling to Country D without the consent of the other party or a further order of the Court. The mother did not put this position into issue.
The mother did not give any evidence as to any adverse fact or circumstance of each of the first, second and third trips undertaken by the family to Country D over the years after the birth of X, or as to the USA trip that occurred, on the mother’s case, close to four years after the parties had separated.
During the course of submissions it was contended on behalf of the mother that the fact of the continuing property dispute between the parties may cloud the father’s judgement such that he would hold the children hostage outside Australia to achieve an advantage by pressuring the mother to compromise the financial dispute in a particular way. I reject that submission. Such proposition was not put the father. There is no evidence to support it. The submission does the mother little credit.
The mother’s evidence is insufficient to make findings as to the allegations made as recorded at paragraph 27 of these reasons, or to reasonably satisfy me that the father has an intention to take the children outside of Australia and not return them. The mother did not proffer any real motive in her oral evidence that he may have any intention to do so. She conceded that most of his family had migrated from Country D, and did not adduce evidence as to him having any remaining business or financial interests in Country D. For the reasons recorded above, I am not satisfied that the mother has identified an evidentiary foundation to ground there being a significant risk of the father not returning the children to Australia should he be permitted to travel with them overseas. The best interests of the children ought to be promoted by evidence and not by speculation.
The mother gave evidence that the children expressed disinterest in travelling internationally. I give that evidence little weight. No context was given to the alleged broad and summary statements made by the children. Both parents and the Independent Children’s Lawyer agreed that the children are mature for their ages, are well rounded and balanced. They each are academically gifted and performing well at school
The Independent Children’s Lawyer strongly submitted that the prospects of the children having the benefit of travelling outside Australia would promote their interests, especially as they progressed through their teenage years. The Independent Children’s Lawyer further submitted that the children would benefit from being able to visit their extended families in both Country E and the USA.
It is significant that the parents have previously travelled to and returned from Country D with the children on three occasions absent any complaint. Implicitly, I find that each of the parents were of the view that the children undertaking travel to spend time with their extended families on these occasions was in their best interest from 2010 until 2015. I give significant weight to this circumstance and to the fact that they travelled to the USA while (on the mother’s case the parents were separated) absent complaint or any adverse event. I find that these are parents who have historically travelled with their children to facilitate their relationships with their extended family and to expose them to differing presentations, contexts and experiences of their cultural heritage.
The Child Inclusive Conference Memorandum records the high levels of animosity and conflict that exists between the parents. During the course of each of their cross-examinations, I observed that they each illustrated an absence of trust and confidence in the other. That in itself is a legitimate foundation for each of them to be apprehensive of the other’s motives for international travel.
I am mindful to make orders that will avoid the prospects of the parties undertaking further litigation as to the parenting of the children. The mother’s position is more likely to invite further litigation upon the father seeking to enable the children to travel to the USA.
In assessing all of the matters recorded earlier in these reasons, I find that it is in the best interests of the children to have the opportunity to travel internationally with each of their parents during the periods that they would otherwise be spending with the travelling parents pursuant to the consent orders. I am content that terms proposed by the father and the Independent Children’s Lawyer as to international travel shall achieve this objective, however for the sake of clarity and the avoidance of future disputes as to interpretation I shall make some minor amendments to the proposed orders. It is open for the parents to negotiate changes to these orders if they are so minded to. Similarly, it will be open for the parents to apply to the Court to prevent the other parent travelling upon receiving notification of their intention to travel, should they have a genuine reason to do so.
While I am not satisfied that there is a probability that either parent will retain the children internationally, I cannot completely rule out the possibility that they will do so (although I find that such possibility is low having regard to the above reasons). The consent order as to the mother holding the children’s passports will afford her some sense of security.
During the course of the trial I canvassed as to an appropriate security amount to be paid as a condition of travel. While properly conceding that the quantum of security was somewhat speculative, the mother contended $50,000 in cash and the father $20,000 being sufficient. Neither parent will have access to such funds save and except after completion of the property proceedings or by way of accessing it from immediate family. In the circumstances it is in the children’s best interest for there to be some form of security to ensure their return to Australia if international travel occurs. Security is just that. It is not a payment that is made to the other parent but a form of guarantee that can be held by a solicitor pending compliance by the travelling parent with the terms of any orders made as to international travel and repatriation of the children to Australia at the conclusion of that travel. In the event the travelling parent does not comply with the orders of the court and return the children to Australia then that parent or to forfeit the security payment in favour of the other parent to assist the non-travelling parent in securing the children back to Australia. A security payment other than in cash is problematic in the event of a failure to return the children and the security fund needing to be accessed. In the circumstances, albeit somewhat arbitrary, I will determine that the quantum of cash security to be deposited with a solicitor nominated by the travelling parent is to be $25,000 with provisions for certification by the solicitor holding the funds to the non-travelling parent.
It is appropriate for no international travel to occur until the new parenting regime has bedded down for 12 months. This will permit the children time to settle into their new parenting regime spending increasing time with their father on an incremental basis and will provide a period of opportunity for the current suspicions held by each of the parents to reduce or dissipate. It will permit each of the parent’s time to accumulate funds for any security deposit.
Conclusion
For all of the above reasons, I make orders as set out at the forefront of this judgment.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 11 November 2022
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