Edgar and Dunshea
[2005] FMCAfam 359
•1 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDGAR & DUNSHEA | [2005] FMCAfam 359 |
| FAMILY LAW – Whether husband be permitted to take the children to Israel – security concerns – application dismissed. |
| Family Law Act 1975 (Cth), Part VII, ss. 60B, 65E, 68F(2) |
| C v N [2003] FMCAfam 466 B & B, Re; Family Law Reform Act 1995 (1997) FLC 92-755. Levin & Levin (Unreported Judgment, MLF 7188 of 2002, 3 December 2003) Re S (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 (3 July 2002) Silverman v Silverman, 338 F. 3rd 887 (8th Cir. Min., 2003) V and V (2004) FamCA 1074 |
| Applicant: | MR EDGAR |
| Respondent: | MS DUNSHEA |
| File Number: | MLM 6347 of 2001 |
| Judgment of: | Connolly FM |
| Hearing dates: | 31 March and 1 April 2005 |
| Date of Last Submission: | 1 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Edgar appeared on his own behalf |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr T.J. North SC |
| Solicitors for the Respondent: | Taussig Cherrie & Associates |
ORDERS
The application of the Husband filed 8 March 2005 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Edgar & Dunshea is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 6347 of 2001
| MR EDGAR |
Applicant
And
| MS DUNSHEA |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an ex tempore judgment arising from the husband's application to take the children of the marriage to Israel for a period of two weeks from 17 April to 1 May 2005 in order to celebrate his father's 80th birthday party. That application was opposed by the respondent wife.
The husband's application was supported by his affidavit filed on
24 March 2005, an affidavit by his wife also filed on 24 March 2005 and seven further short affidavits filed on the same date by various friends. The wife's response, which sought a dismissal of the husband's application and costs, was filed on 17 March 2005 and later amended. The response was supported by her affidavits filed on 17 March 2005 and 31 March 2005.
The background
The husband is 43 years of age. He is an information technology project coordinator who is currently unemployed. He resides at [X] with his wife Ms S and her two children E and S. Ms S is some seven months pregnant with their first child. The husband has been unemployed since October of last year and he currently pays $16 a month child support for the three children of his former marriage and was approximately $5,000 or more in arrears at the time of the wife's swearing of the affidavit.
The wife is 43 years of age. She is a psychologist and currently lives at [M] with her husband Mr M and their child Y, who is two years of age, as well as the three children who are the subject of these proceedings.
The parties married in December 1989. They separated in September 1999. There are three children of the marriage: R, born in 1991, currently aged 13; N, born in 1993, currently aged 11; and D, born in 1996, currently aged 8. All three children attend [B] School.
Final orders were made by consent in the Family Court of Australia at Melbourne on 31 July 2001. Pursuant to those orders the children reside with the wife and have contact with their father alternate weekends, special days and for agreed times during the holidays. The current arrangement is for alternate weekends, each Wednesday after school until the commencement of school on Thursday and half school holidays as well as special days by agreement.
The husband's request to take the children to Israel for his father's birthday was contained in an email dated 3 March 2005. The wife indicated that she was not comfortable with the children travelling to Israel because of the security risks they would face and on 8 March 2005 the husband issued these proceedings. The husband's evidence was that the grandfather was going to pay for the cost of the trip, which he estimated at approximately $8,000.
The Law
The husband provided me with a copy of a judgment by Registrar Fitzgibbon in the matter Levin & Levin (Unreported Judgment, MLF 7188 of 2002, 3 December 2003), which referred to a number of cases: Re S (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 (3 July 2002), a decision of the Court of Appeal in England, as well as the matter of Silverman v Silverman, 338 F. 3rd 887 (8th Cir. Min., 2003), a United States Court of Appeal decision delivered on 5 August 2003, and C v N [2003] FMCAfam 466, a decision of Federal Magistrate Phipps. The husband relied on the decision of Registrar FitzGibbon in support of the proposition that the children should only be restricted from travelling to Israel if there is clear and compelling evidence of a grave risk to the children. However, I agree with the submissions of Counsel for the respondent wife that the test only applies with respect to considering the risk of children being returned to a country pursuant to the provisions of the Hague Convention. Mr North, Counsel for the wife, further submitted that the element of risk is only one of the factors to be considered in determining what is in the best interests of the child. In support of that proposition he referred me to the decision of Justice Rowlands in V and V (2004) FamCA 1074, a judgment delivered on 24 November 2004.
I accept that submission as an accurate statement of the law.
The law
Contact and specific issues orders are parenting orders. They arise in proceedings under Part VII of the Family Law Act 1975 (Cth). Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E in that, in determining the outcome, the best interests of the child is the paramount consideration; that is the overriding principle.
Sections 60B(2)(a) and (b) have particular relevance in these proceedings. The principles set out in those sections are as follows:
a)children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated or have never lived together; and
b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development.
Fundamentally these provisions emphasise the desirability of contact. “Regular” carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child’s best interests.
In deciding the residence, parenting and contact arrangements that would best promote the interests of a particular child, the court must consider the various matters set out in section 68F(2); its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.
Paragraph (l) permits the court to take into account any further fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children’s circumstances can be addressed: B & B, Re; Family Law Reform Act 1995 (1997) FLC 92-755.
Conclusions and findings
The mother's primary concern and most significant reason for objecting to the children's trip to Israel, as contained in both her affidavit and her oral evidence, is the children's safety and/or security. Indeed it is clear that she is terrified of the possibility of the children being the subject of an indiscriminate violent terrorist attack.
There are two relevant pieces of evidence with respect to this issue. Firstly, there is a Department of Foreign Affairs & Trade (‘DFAT’) document which is dated 24 March 2005 and is annexed to the husband's affidavit. That, in part, says:
Australians should consider carefully their need to travel to Israel at this time. Australians in Israel concerned for their safety should consider departure. The risk of terrorist attack remains high. These attacks could occur at any time and could be directed against any locations where large numbers of people gather, including tourist areas. Australians should not travel to the Gaza Strip or the West Bank. Australians in the Gaza Strip and the West Bank should leave. Conflict between Israeli forces and Palestinians in these areas is continuing and political tensions are high. Australians should avoid non‑essential travel to Israel's borders with Lebanon, Syria, Jordan and Egypt. Australians in Israel, the Gaza Strip and the West Bank are strongly urged to register with the Australian Embassy.
There is also a travel advisory warning from the United States Department of State, which was Exhibit A. That document is headed "This information is current as of today, Wednesday, Mar 30" and states as follows:
This Travel Warning is being issued to update information on threats to American citizens and interests in Israel, the West Bank and Gaza. Terrorist attacks have occurred in Israel and in areas frequented by Israeli tourists across the Israel border with Egypt, and there are ongoing concerns regarding locations associated with American interests in Israel. Revised prohibitions regarding the use of public transportation within Israel by American government employees have also been issued. In addition, instability related to the death of Yasser Arafat and upcoming Palestinian Authority elections remains a possibility. This replaces the travel warning for Israel, the West Bank and Gaza Strip issued August 3, 2004.
The significant part of the warning is that the US Department of State continues to warn US citizens to depart Gaza immediately and to defer travel to Israel, the West Bank and Gaza due to current safety and security concerns. It is that warning that is of significance in the context of this case.
There are also a number of newspaper articles put forward by both parties in their respective affidavits, but they have, in my view, little evidentiary value.
While I accept the husband's evidence that he is a devoted father to the children and would not be willing to put them at any risk, there is a sense that he has some difficulty in appreciating that there might be any risk. His conduct in making enquires of the Department of Foreign Affairs I found somewhat blasé. I am not satisfied that he made any enquiries at all with the Department until after the wife's affidavit, sworn on 17 March 2005, when the DFAT document annexed thereto came into his possession. Indeed, when cross‑examined about this issue the only DFAT document he was able to produce at all was that dated 24 March 2005.
In support of his contention that Israel was a safe and secure place for children to travel to, he referred to the fact that [B] School conducts tours to Israel with children on a regular basis. What he failed to communicate until cross‑examined on the issue was that they are accompanied everywhere by armed guards and at the commencement of each day prior to travel they speak with a committee of security experts. Clearly, the school authorities consider such measures necessary to ensure the children's safety.
Further, when given the opportunity to give some evidence of his response to the warning of the US State Department, he indicated to the effect that it made no difference.
The husband, in the way he conducted his case, advanced as a further reason for being allowed to take the children the fact that his parents would be highly unlikely to travel to Australia. He indicated in his affidavit, at paragraph 13, that he sent the wife an email on 13 March 2005 informing her that there is a strong likelihood that his parents will not again be travelling to Australia due to the impact of the lengthy journey on his father's wellbeing. This was in stark contrast to his email to the wife on 3 March 2005, before he was aware of the wife's reluctance to allow the children to go, in which he said in paragraph 1 of that document:
I have spoken to my parents last Sunday and asked them whether they could come to N's BM. In principle, they would love to but they need more specific dates. Have you spoken to [X] already about this? You were going to find out a range of dates that I was going to run by my parents so they can indicate the time that would suit them. Please do that ASAP so I can discuss it with them this weekend.
When cross‑examined about this and the obvious inconsistency, he said that the conversation with his parents in fact took place with his mother only. I simply did not believe what he said. Indeed even if it were so, it is highly likely that his mother would have been aware of his father's purported reluctance to travel and would have mentioned it. There is no doubting the mother's genuineness on this issue. The father readily concedes that in the past she has done all that she could to encourage the children to have a relationship with the paternal grandparents and I have no doubt she will do so in the future.
The mother has also raised as a reason for her objection to the children's travelling at that time the fact that it was her turn for the children to be with her for Passover. This is in circumstances where the father had the children for the last two Passovers and, further, the mother had already made arrangements for members of her extended family to come from interstate, and in particular from Perth, to be with them for Passover. The husband displayed little concern that his plans would completely undo these arrangements and the effects that that might have on the children. He conceded reluctantly that it was considered a significant religious celebration.
Finally, the mother raised the issue of the possibility of the children not being returned by the husband. Certainly by the conclusion of the hearing I was satisfied that this was not a risk. Israel is a signatory to the Hague Convention. The husband also indicated that his wife, who is seven months pregnant, would be prepared to hand in her passports pending his return and he would arrange through friends to place $30,000 in a trust account also pending his return. He was prepared to agree to any other conditions sought by the wife.
I have no doubt the husband loves his children and has a great relationship with them. I also accept that there would be many and great benefits to them from attending their grandfather's 80th birthday and meeting other members of the husband's extended family. However, given the very real security and safety concerns aired by the DFAT document and the warnings by both DFAT and the US State Department, I am satisfied that the mother's concerns are both real and well founded, albeit this is not to say that the children are unlikely to come home if they undertake the trip. However, when considered together with the arrangements that the mother has already made for Passover, the angst that she would suffer if they in fact undertook the travel and all the other pertinent circumstances of this case, I am of the view that the husband's application should be dismissed and I order accordingly.
I do not propose to make an order for costs. The most significant reason for that is that the husband's application was a genuine one.
He wanted to take the children to his father's birthday. It is not something that was motivated by any degree of maliciousness. The matter was a relatively finely balanced determination. Certainly there were benefits which, as I have indicated in the reasons, could have accrued to the children by way of the trip, but on balance I determined that the husband should not be permitted to take the children to Israel.
As I have already indicated, it seems to me that this matter has been heard and disposed of at two hearing dates. It took all of yesterday.
It could not have been concluded in a duty list. The husband may be fortunate in that regard in that he has had the material ready and the matter was able to proceed yesterday.
Finally, I look at the parties' financial positions. In terms of the husband's finances, he is currently some $5,000 or more in arrears of child support. He is unemployed. The wife says he has been unemployed for a good deal of the last five years. Whether he is being supported by his current wife, from other sources or from monies from his parents I do not know, but I am not satisfied that there is a likelihood that the making of an order for costs would be recouped from the husband or that he could afford to meet that payment. For those reasons, and the reasons that I have given in communication with Counsel for the mother, I determine that it is not appropriate to make an order for costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 25 July 2005