Felber and Felber

[2012] FamCA 404

FAMILY COURT OF AUSTRALIA

FELBER & FELBER [2012] FamCA 404

FAMILY LAW – CHILDREN – Removal of children from watch list

Family Law Act 1975 (Cth)

Line & Line (1997) FLC 92-729

APPLICANT: Ms Felber

RESPONDENT: Mr Felber

FILE NUMBER: MLC 2808 of 2012

DATE DELIVERED: 29 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 May 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That paragraphs 8 and 9 of the orders made on 11 September 2003 are forthwith discharged.

2. That the Court notify the Australian Federal Police of the removal of the names of the children D FELBER born … April 1996 and N FELBER born … June 1998.

3. That the application filed on 11 May 2012 and the response thereto filed on 21 May 2012 are otherwise dismissed.

4. That pursuant to s.65DA(2) and s.62B, 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 by this Court under the pseudonym Felber & Felber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2808  of 2012

Ms Felber

Applicant

And

Mr Felber

Respondent

REASONS FOR JUDGMENT

1. On 11 September 2003 Wilczek J ordered that the child D born in April 1996 and the child N born in June 1998 not be removed from the Commonwealth of Australia and further, that their names be maintained on an airport watch list system maintained by the Australian Federal Police.  The children were then seven years and five years of age respectively.

2. On 30 March 2012, Ms Felber (“the wife”) sought an order to permit the children to leave the Commonwealth of Australia but particularly the child D because he had an opportunity to travel to Japan in September and October 2012 for school purposes.  On 11 May 2012, the wife amended her application to specifically seek determination of that issue.  The wife also sought that the father sign a passport application for the children.

3. The husband filed a response to the wife’s initiating application on 21 May 2012.  Although he did not seek to oppose the interim orders sought by the wife, his final position was quite clear.  He agreed that the child D could go to Japan in September and October and that the airport watch injunctive order should be suspended for that period but he otherwise wanted the situation to remain on an ongoing basis. 

4. Both parties attended before me not only unrepresented but each had the benefit of a Polish interpreter. 

5. Both parties said that there was nothing further they could say on a final basis in relation to the dispute about final orders.  Neither proposed to call any further evidence.  Each indicated that they wanted to cross-examine the other.  With their agreement, I decided that the sensible solution was to resolve the matter on a final basis having regard to the discrete nature of the dispute.

6. The significant issue in this case is a concession by the husband about two things.  First, he accepts that his fear that the wife would go to live in Poland arises entirely from a statement made prior to the separation of the parties when the children were very young.  He conceded that Poland is a democracy where there is no war and it is not suggested by him that the children would be unsafe.  The second concession was he has not seen the children for eight years.  Whatever the reason for that is not relevant.  It could not be suggested that he would be deprived of his time with the children or more importantly they with him if in fact the wife did take the children to live in Poland or outside of Australia in any event.

7. A significant feature of this case is the age of the children now.  The child D will soon be 18 years of age. 

8. The husband knew little about what was happening with the children.  The wife is employed in healthcare and has had that position for three years.  Her only relative in Poland is a brother.  Her life and that of the children is in Australia.  Nothing that the husband put to her would indicate that that is not the case.  I am satisfied that her home is Australia.  I am satisfied that the children reside here permanently and treat Australia as their home.

9. I am satisfied that the only basis upon which the husband could object is the fact that the wife told him many years ago that she wanted to take the children back to Poland.  He put that question to her in cross-examination and she denied the conversation ever occurred.  Even if I was to find that was the case, it is now irrelevant. 

10. The evidence that the wife presented was scant.  Her focus was on the forthcoming trip for the child D however it must follow that the younger child N will be seeking similar privileges in the foreseeable future.

11. In every case, the decision of a parenting nature has to be made with the best interests of the child in mind.

12. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court.

13. Section 64B(2) provides that a parenting order may deal with any aspect of parental responsibility for a child not otherwise covered by the section. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which relevantly provides that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

14. To have a meaningful involvement in the life of a child where there are issues of cultural heritage as well as extended family requires consideration of allowing a child to travel internationally to experience those things.

15. The principles underlying the objects provide amongst other things that children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). Fundamental to my decision in this case is s 60CA which says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

16. In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests.

17. I do not propose to deal with the issues of equal shared parental responsibility because those matters have already been dealt with by previous orders and as such, there is little point in dealing with them again.

18. This case is about the assessment of risk.

19. The factors to be considered in the assessment of that risk, that is of non‑return of the child, were set out by the Full Court in Line & Line (1997) FLC 92-729.

20. The factors were said to be as follows:

    (a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

    (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

    (c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

    (d)Whether the country of travel is a signatory to the Hague convention.

21. As I have pointed out above, there is sufficient basis for me to find that the tie between the wife and Australia is strong.  I find there is no motive for her not to return.  I find there is no motive for her to remain in Poland or any other place overseas.  I am satisfied that Poland is a signatory to the Convention.

22. When turning then to the matters set out in s 60CC, it is clear that the husband can contribute little to assist the determination.  The views of the children are clearly relevant and I have no doubt that the sort of issue contemplated by the wife concerns their schooling and holidays and that they would have a desire to travel.

23. Section 60CC also requires that I contemplate the question of the benefit of the children having a meaningful relationship with both parents.  Not only is that not happening but it would not be affected by the order that I make anyway.  In the same way, there is no relationship between the husband and the children and it was not suggested that the wife was the cause of that problem.  There is no suggestion that any order I make would affect the chances of that relationship being re-established.  As the husband pointed out, it might occur when the children turn 18 years of age anyway.  There is no question about the capacity of the wife to care for the children having regard to the fact that she is undertaking the task in any event.  All of the other matters set out in s 60CC(3) and (4) and (4A) do not assist the determination of this discrete issue.

24. I am satisfied on the circumstances that there is a low risk to the children but that otherwise, it is in their best interests that they be permitted to travel internationally without the problem that might otherwise arise of regular trips to the Court to obtain the sort of order that the wife contemplated on this occasion.

25. Accordingly, I am satisfied that an order should be made to discharge the airport watch list orders made in 2003.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 May 2012.

Associate: 

Date:  31 May 2012