F and M
[2001] FMCAfam 167
•8 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & M | [2001] FMCA fam 167 |
| FAMILY LAW – Application to vary order of South African Superior Court – mother seeking to immigrate to Australia – No reliable evidence of wishes of child, aged 17 years 4 months – No order made. |
| Applicant: | C A F |
| Respondent: | R E M |
| File No: | ZB 4886 of 2001 |
| Delivered on: | 24 August 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 20 August 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Westbrook |
| Solicitors for the Applicant: | Cleary Hoare Solicitors of Brisbane |
| Solicitors for the Respondent: | No appearance by the Respondent |
ORDERS
That the matter be adjourned to the Federal Magistrates Court of Australia at Brisbane on 27 September 2001 at 9.30am.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
ZB 4886 of 2001
C A F
Applicant
And
R E M
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application made by the mother, C A F, who is now resident in Australia as is the child, the subject of the application, D R M, born 23 April 1984. As far as I am concerned the residence of the child within the jurisdiction establishes the jurisdiction of this Court to entertain the application. The application was filed on 20 August 2001 seeking various orders relating to an application to be made to the Immigration Authorities. The matter arose in the normal duty list on Monday, 20 August 2001. I reserved to consider the evidence.
Background
The mother has been custodian of D for many years and certainly since and by virtue of the divorce which was granted on 28 July 1989 by the Supreme Court of South Africa (Local Division).
I have in evidence a copy of the order of that Court and an agreement signed by the parties which became "an order of the Court" at the time which provided relevantly at paragraph 2 that:
“The plaintiff, who is the mother, shall retain custody of the minor born of the marriage.”
Paragraph 3 of the order provides:
“That the defendant, who is the father, shall have reasonable access to the minor child born of the marriage.”
And relevantly at paragraph 3.4 that:
“Neither the mother or father shall be entitled to remove D from the Republic of South Africa without the consent in writing having first been obtained from the other party, which consent shall not be unreasonably withheld.”
Paragraph 9 dealt with a general abandonment of cross-claims.
On 21 March 2001 the mother remarried R J F, a former South African citizen who, after immigrating to Australia in April 1998, was granted Australian citizenship on 13 July 2000. The mother and D visited Mr F in Australia in January 2001 and within one month he proposed and it seems within two months they were married. Subsequently the mother has filed a formal application for immigration with the Australian Department of Immigration for "a partner residence visa" which, as D is a minor, also applies to him.
The mother and D have been granted bridging visas so as to entitle them to remain resident in Australia pending the outcome of their immigration application. The mother says she has been advised by her specialist immigration agent that the consent of the father is required for two reasons:
a)To comply with the provisions of clause 3.4; and
b)To ensure that the father's right to contact under the terms of clause 3 are not prejudiced.
The mother says the father now lives and works in the United States although he is still a South African citizen. The mother says at paragraph 20.1.3.3 that:
“The father has not refused, out of hand, to provide his consent. He simply declined to provide his consent until I have met his monetary and other demands.”
She says the intention of clause 3.4 at the time was to restrict and impede, she says, the father removing the child from South Africa, remembering of course at the time that the child was only 5 years of age. In all respects the mother says that it is in the child's best interests that he remain in Australia with her. She says D also wishes to do so.
The father did not appear on 20 August 2001 but had forwarded to the Court on 15 July a document attaching a copy of a faxed affidavit. He says he is unable to afford representation. He also says he is dealing with a major emotional trauma at this time relating to his father's health. Essentially therefore the father's evidence is not properly before me. However, I indicated, as I felt I should on the record, that the material had been received by the Court. Mr Westbrook indicated that he was aware that there was an affidavit in existence. I've read that affidavit because in the circumstances of this matter I believe I should.
The father opposes the orders being sought and essentially says:
a)The relocation by the mother to Australia is a well constructed plan;
b)That the mother entered Australia on a holiday visa when the mother had every intention of remarrying and remaining in Australia;
c)He objected to D's participation in the trip to Australia in January 2001. The father gave notice he says, to the South African Department of Foreign Affairs and the Australian Embassy in Pretoria as early as 14 January 2001 of, as he described, "the possibility of my ex wife attempting to unlawfully immigrate" with the child to Australia;
d)In January 2001 as soon as he was aware that his son had left South Africa he wrote to the Australian Embassy;
e)He claims his rights for access have been, and will be, prejudiced as D was removed from South Africa against his wishes, making contact more difficult; and
f)He alleges the child made an "emotional collect call to his father", the maternal grandfather, saying he was extremely unhappy in Australia and desires to return to South Africa.
The father says he bases his demands on "moral, emotional, legal and financial grounds and my rights as a father to my son, D."
Conclusion
This is a most unusual application combining, as it does, a request for an order:
a)
To vary a provision of a South African court order made over
12 years ago which prevented removal of D from South Africa without consent, such consent not to be unreasonably refused;
b)In a sense a mandatory injunction which seeks an order requiring the father to consent to an application for the child to permanently reside in this country with his mother;
c)Consequential orders for the execution of the consent form which is annexed to the application, should the father fail to do so.
The consent form not only attests to the father's consent to make an application but also "to remain permanently resident in Australia." There is no reliable and unchallenged evidence before me as to the wishes of the child. Considering D is 17 years 4 months of age, this is of most fundamental importance to this application and I would suspect:
a)Any application to vary the order 3.4 in South Africa; and
b)Consideration by Australian Immigration Authorities of the pending application.
The mother says in her affidavit that D is happy here in Australia, (paragraph 20.1.2), and "has absolutely no interest in returning to South Africa except perhaps on holiday." This has been refuted by the father. I am troubled why, if the mother is so confident the effect of clause 3.4 of the original order is, as she says "irrelevant and of no force and effect whatsoever" she has made no application in South Africa for a variation of the order. One would have anticipated she would do so before she left South Africa. No explanation for this conduct is given, especially in circumstances where she says she was only entering Australia for the purposes of the holiday as that was the nature of her visa.
It might be said, of course, it is a matter for the father to take action if he wishes to enforce what he says are his rights under clause 3.4. It seems clear to me that the mother was well aware of the clear terms set out in clause 3.4. The mother does not suggest otherwise. Holidays to Mozambique and Botswana (which the mother says occurred), are not the same as a permanent relocation to Australia. This is not an application analogous to a Hague Convention type application. The father has not, it appears, in any Court sought an order for the child's return to South Africa. However, it is not a matter for me whether the mother can or cannot remain in Australia.
On the material currently before me I am not satisfied that I would even order that the child, just eight months short of adulthood, must reside permanently in Australia. Because I am not satisfied that I would make that order I find that it would not be proper for me to order the father to consent to the making of an application for permanent residence and/or the consent to that permanent residence as the consent form indicates. The mother will need to meet and negotiate whatever requirements are legally imposed by the Australian Immigration Authorities for permanent residential requirements and if this means obtaining an order in the appropriate forum, being South Africa, to vary order 3.4 then she may have to do so.
For these reasons I would, on the current available evidence, not make the orders sought. If the mother would like an adjournment to gather further evidence by which she believes she is able to support her application then I would be prepared to consider such request rather than dismissing her application today. I will direct that the Father receive a copy of these reasons.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Baumann FM
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