F and M

[2001] FMCAfam 203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & M [2001] FMCA fam 203

FAMILY LAW – Application for order permitting child to remain in Australia – Child 17 years of age – Strong expressed wishes.

Applicant: C A F

Respondent: R E M

File No: ZB4886 of 2001

Delivered on: 27 September 2001

Delivered at: Brisbane

Hearing Date: 27 September 2001

Judgment of: Baumann FM

REPRESENTATION

Counsel for the Applicant: Mr Westbrook

Solicitors for the Applicant: Cleary Hoare

No appearance for the Respondent.

ORDERS

1. That the child D R M born 23 April 1984 reside with the MOTHER in Australia.

2. That the FATHER have such contact to the child whether in Australia or elsewhere as may be agreed between the child and his FATHER.

IT IS NOTED

1. The Court was aware of a pending application for permanent residence visas having been lodged by the MOTHER.  This order reflects the Court’s view as to the best interest of the child and is not a direction to the Department of Immigration and Multicultural Affairs about which processes it may by law be required to undertake.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

ZB 4886 of 2001

C A F

Applicant

And

R E M

Respondent

REASONS FOR JUDGMENT

1. In this matter, on 24 August I published reasons in respect of an application by the mother seeking certain orders in relation to a child,
   D R M, born 23 April 1984.  In those reasons, I identified some difficulties on the state of the evidence at that time in making the orders sought by the mother.  My major concern, as I believe it ought to have been, was that the wishes of the child, a child approaching statutory adulthood, was such that the evidence before me was unclear.  Counsel for the mother on that occasion, and counsel for the mother today, Mr Westbrook, elected to have the matter adjourned to ascertain whether further evidence was capable of being adduced. 

2. Since the matter was before me on the last occasion, I now have the benefit of an extensive affidavit and report by a well-known and experienced social worker, Ms Marie Adams, dated 10 September 2001; an affidavit by Mr Christopher McGrath, a migration lawyer who is representing the mother in her application for permanent resident visa for Australia; and a further short affidavit by the applicant mother dealing with issues relating to steps that might be required to vary the order previously made in South Africa.

3. In particular, the report of Ms Adams is very detailed and examines particularly the wishes of the child.  It is important to note, in my view, that Ms Adams did not interview D's parents or significant other people such as his stepfather, Mr R F.  Her report was, and properly so, in my view, directly focused on assessing the views of the child and whether those views had a reasonable foundation. 

4. I do not propose to state the full circumstances of the report, save to say that at paragraph 3.1, after identifying D as a bright, articulate and pleasant young man in robust good health, and demonstrating self-confidence and self-esteem, she opines, "D is happy and settled living with his mother, Mr F and N."  N is a child of a former relationship of Mr F.  She further says that D's wish to remain in Australia with his mother is very clear and strong. 

5. Importantly, in my view, in this matter, she also records that, "D would like to have contact with his father, either in South Africa or in the USA while he is still at high school and during the year that he plans to travel."  There was nothing in the report that suggested to me that D felt in any way inhibited in continuing to develop through his life whatever relationship he wished to have with his father.  There was certainly nothing in the report which suggested that the mother, by coming to Australia, was motivated in any way by an attempt to prevent the father from having contact to D. 

6. It seems clear to me, on the evidence, that if the mother was motivated by such desire, then D is the type of child who is more likely to do what he thinks will promote the contact he wants with his father, in any event.  I am also satisfied that it would be an almost futile exercise, and not one which in all the circumstances can be justified, on the evidence before me, to force the mother to seek a variation of the order made many years ago in South Africa.  The history of that order is referred to in my earlier reasons.

7. I indicated to Mr Westbrook that whilst I am happy to acknowledge the importance to the child, a child within the jurisdiction of this Court, of remaining in Australia, of course I should be satisfied that any order I make does not impede any relationship which the child wishes to have with his father.  Permanent residence in Australia would not, it seems to me, do that.  I am also conscious of the remarks made by Mr McGrath in his affidavit at paragraph 5, which deals with criteria 801.324, so far as the Department of Immigration and Multicultural Affairs is concerned; namely, that in circumstances where a child is part of an application for a permanent residence visa, at this stage an application lodged by his mother, then it is necessary for:

   “ ... the Minister to be satisfied that the grant of a visa to the applicant would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the applicant.”

8. I am satisfied that the orders I propose to make will not impede the rights of the father.  In all circumstances, I propose to order as follows:

   (1)That the child, D R M, born 23 April 1984, reside with the mother in Australia;

   (2)That the father have such contact to the child, whether in Australia or elsewhere, as may be agreed between the child and his father.

9. I will make this notation to the order.  The notation will be in the following terms:  the Court was aware of a pending application for a permanent residence visa having been lodged by the mother.  This order reflects the Court's view as to the best interests of the child, and is not a direction to the Department of Immigration and Multicultural Affairs as to what processes it may be by law required to undertake.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date: