FREDERICKS & CARRIGAN
[2012] FMCAfam 663
•12 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FREDERICKS & CARRIGAN | [2012] FMCAfam 663 |
| FAMILY LAW – Children – parenting orders – child maintenance – children aged 15 & 8 – overseas travel – father resident of [Q] – children live in Adelaide with mother – father seeks orders that children spend time with him in [Q] – mother opposes overseas travel for children – [Q] not a signatory to Hague Convention – both father and mother born in Pakistan – assessment of risk of deviation by father with children to Pakistan – Pakistan also not a signatory to Hague Convention – parties have poor and mistrustful relationship – assessment of father’s bona fides – assessment of risk of non return – best interests of children – benefit of meaningful relationship with father – benefit of children interacting with father in his home environment – whether security should be imposed – assessment of financial needs of children – capacity of parties to contribute to those needs – father employed as [omitted] – mother employed on a part time basis as [omitted] – father’s income paid in [currency omitted] and not liable to income tax – father provided with furnished accommodation in [D] – no independent evidence available regarding cost of living expenses in [Q] – relevance of child support scheme – relevance of published research regarding costs of children in Australia – what is proper – costs. |
| Family Law Act 1975, ss.60CA; 60CC; 64B; 66B; 66C; 66E; 66H; 66J; 66K; 117(1) Evidence Act1995, s.144 |
| Carrigan & Fredericks [2011] FMCAfam 544 Maider &Carrigan [2008] FamCA 862 Maider & Carrigan [2009] FamCA 483 Beck v Sliwka (1992) 15 FLR 520 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Gin & Hang [2010] FamCA 617 Cadena & Beltran [2010] FMCAfam 1165 Bray & Constable [2011] FMCAfam 1397 |
| Applicant: | MS FREDERICKS |
| Respondent: | MR CARRIGAN |
| File Number: | ADC 4281 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 15 July 2011, 30 September 2011 & 23 January 2012 |
| Date of Last Submission: | 18 April 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 12 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Bowler |
| Solicitors for the Respondent: | Matthew Mitchell |
ORDERS
The respondent father Mr Carrigan pay maintenance for the children of the marriage [X] born [in] 1997 and [Y] born [in] 2003 to the applicant mother Ms Fredericks at the rate of A$1,250.00 (A$625.00 in respect of each child) per calendar month.
Order (1) hereof commence on 1 September 2009 and all sums of maintenance to be paid by the respondent father to the applicant mother be calculated from this date.
The orders made by the court in respect of the provision of maintenance for the aforesaid children be registered for collection with the Child Support Agency pursuant to the provisions of the Child Support (Registration & Collection) Act 1988.
The respondent father pay the sum calculated pursuant to these orders to the Registrar of the Child Support Agency on the 15th day of each month commencing on 15 July 2012.
The amount currently standing to the credit of the respondent father in case number 254210011 (A$34,984.18) be utilised by the Registrar of the Child Support Agency to discharge arrears of maintenance arising under order (1) hereof.
The respondent father pay whatever arrears remain outstanding pursuant to order 1 hereof after the calculation envisaged by order (5) hereof has taken place at the rate of A$50.00 per month with the payment of arrears to be made concurrently with the order for child maintenance pursuant to order (1) hereof.
The portion of the maintenance payment attributable to each of the children pursuant to order (1) hereof cease on that child attaining the age of eighteen (18) years or in the event that child becomes financially self supporting by reason of entering the paid workforce on a full-time basis or ceasing full-time secondary or tertiary education.
The rate of maintenance to be paid pursuant to order (1) hereof be indexed to reflect changes in the Consumer Price Index published for Adelaide in the final quarter of each financial year commencing with the final quarter in the financial year ending 30 June 2013.
The respondent father be entitled to spend the twenty-one (21) days of time with the children during the December/January school holiday provided to him pursuant to order (4)(c) and (d) and order (5)(f) and (g) of the orders of the Family Court made 12 February 2009 in [Q].
In order to give effect to order (9) hereof order (25) of the orders made on 11 February 2009 by which the children’s names were placed on the Pass list is suspended to enable the children to depart from the Commonwealth of Australia in order to travel to [Q].
The children’s travel to [Q] pursuant to order (9) hereof will be subject to the satisfaction of the following conditions:
(a)The children’s cost of travel between Australia, [Q] and return will be borne exclusively by the respondent father;
(b)The children are to be accompanied on all travel between Australia, [Q] and return by a responsible adult, who shall be one of the following:
(i)The father himself;
(ii)The children’s paternal grandmother;
(iii)The children’s paternal grandfather;
(iv)The father’s current wife;
(v)One of the children’s paternal aunts.
(c)The father will be responsible for paying all the costs of travel for the accompanying adult.
(d)The respondent father will provide to the applicant mother written notice of his intention to spend time with the children in [Q] pursuant to these orders in writing at least ninety (90) days prior to the date scheduled for the children’s departure from Australia.
(e)The respondent father provide the applicant mother with a detailed itinerary of the children’s travel outside of Australia including flight times of arrival and departure; flight numbers; addresses of accommodation at which the children will be staying; and contact details in respect of the children, particularly any relevant telephone numbers and email addresses at which the children may be contacted; with the itinerary to be provided to the applicant mother sixty (60) days prior to the date scheduled for the children’s departure from Australia.
(f)Strict compliance with the provisions of order (12) hereof regarding lodgement of security to ensure the return of the children to Australia.
The paternal grandparents Mr and Mrs J are ordered to provide to the applicant mother forty-five (45) days prior to the date of the children’s proposed departure from Australia a memorandum of mortgage in registerable form in an amount of $150,000.00 in respect of their home located at Property G, in the State of South Australia.
Upon the return of the children to her care in Australia, following any period of overseas travel to [Q] arising from the operation of these orders, the applicant mother is directed to return the memorandum of mortgage arising from the operation of order (12) hereof to the paternal grandparents, Mr and Mrs J.
Within twenty-eight (28) days of the date of these orders, the applicant mother provide the respondent father with photocopies of the children’s current passports.
The applicant mother make application for the renewal of passports issued in respect of the said children and provide the respondent father with photocopies of such updated passports within twenty-eight (28) days of having received such renewed passports.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Fredericks & Carrigan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4281 of 2007
| MS FREDERICKS |
Applicant
And
| MR CARRIGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings arise, in part, as a result of a judgment delivered by me on 15 June 2011. On that date, I made a declaration that
Mr Carrigan “the respondent” ceased to be a permanent resident of Australia from 17 January 2008 onwards.
As a consequence of this declaration, any administrative assessments of child support pertaining to him, which emanated in this country, were terminated. This decision occurred after earlier lengthy litigation in both the Family Court and the Social Security Appeals Tribunal (“SSAT”) between the parties.
The applicant in these proceedings is Ms Fredericks, “the applicant”. She and the respondent are the parents of two children, [X] born [in] 1997 and [Y] born [in] 2003. The parties married, in Pakistan, [in] 1991.
The parties and [X] moved to Australia in 2001. It is agreed between them that they finally separated during 2006. On 1 August 2006,
Mr Carrigan was administratively assessed to pay Ms Fredericks child support for the two children, who remained in her predominant care.
Arrangements for the care of [X] and [Y] were the subject of lengthy litigation in the Family Court. On 11 February 2009 Burr J ordered that the children live with their mother and spent time with their father, primarily in block periods during each school holidays.
Accordingly, pursuant to these orders [X] and [Y] live permanently in Australia with their mother, Ms Fredericks. She and the children live in suburban Adelaide and have done so for many years.
Importantly in the context of the current proceedings, the orders of 11 February 2009 contain an injunction restraining each of the parties from taking the children outside of Australia without the other’s consent. The orders also place the children’s names on the “Watch List” maintained by the Australian Federal Police at each international airport in Australia, a measure designed to prevent the removal of the children from this country.
Accordingly, it was envisaged that Mr Carrigan would only be able to spend time with the children, pursuant to the orders of 11 February 2009, in Australia. This was an issue at the trial before Burr J. Initially Mr Carrigan sought orders that the two children should live primarily with him.
Until the end of 2007, Mr Carrigan also lived in Australia and was deemed to be an Australian resident for child support purposes. On 17 January 2008, he took up employment, as an [omitted], with [Q]. He now lives in [D].
The orders made by Burr J have the following notations:
“UPON NOTING that the parties and the independent children’s lawyer are agreed that no Rice and Asplund issues will be raised in relation to any application made by the father to pursue the children’s future travel to [Q] or overseas destinations with him AND UPON NOTING that the father’s consent to the mother having the sole parental responsibility for the children is predicated upon the father’s inability to exercise parental responsibility as he is living overseas.”
[Q] and Australia do not have a reciprocating agreement in respect of the collection and assessment of child support. Accordingly, when the respondent moved to live and work in [Q], a terminating event occurred for child support purposes. This was not an issue which was apparently closely considered in the Family Court proceedings. It was the subject of the proceedings before me, which commenced as an appeal from a decision of the SSAT.[1]
[1] See Carrigan & Fredericks [2011] FMCAfam 544
The effect of my decision was that the regime created by the Child Support (Assessment) Act 1989, by which a specific legislative formula was administratively applied to the respective income of Ms Fredericks and Mr Carrigan to determine what should be their ongoing level of support for [X] and [Y], was no longer applicable. Accordingly, the amount of child support to be paid by Mr Carrigan was no-longer administratively assessed by an Australian authority.
On 20 September 2010, the applicant commenced proceedings in this court seeking maintenance for [X] and [Y] pursuant to the provisions of the Family Law Act 1975. Ms Fredericks is seeking that Mr Carrigan pay her the sum of $225.00 per week in respect of each child or a total amount of $23,400.00 per annum.
Regrettably, these proceedings have been delayed. Firstly, it was necessary for the controversy surrounding the applicability of the child support regime to the parties’ circumstances to be resolved. Secondly, an earlier final hearing could not go ahead as scheduled because of difficulties Mr Carrigan had in flying to Adelaide.
On 15 July 2011, the respondent agreed to pay interim child maintenance to the applicant for [X] and [Y] in an amount of $870.00 per month or $10,440.00 per annum. It is his position that this amount represents a proper level of maintenance for him to provide to the applicant for the children, when his current level of remuneration and circumstances in [Q] are objectively considered.
In conjunction with the child maintenance proceedings, the respondent seeks orders in respect of parenting arrangements for [X] and [Y]. Essentially, he seeks orders that would enable him to spend time with the children, during school holidays, outside of Australia and in [Q]. This application is strenuously opposed by the applicant.
Both parties were born in Pakistan. They married, in Pakistan, [in] 1991. In 2001, they moved to Australia, where they finally separated in 2006.
Both parties are Australian citizens. The marriage between them was dissolved, following a contested hearing, by order of Dawe J made on 9 October 2008. The issue arising before Dawe J being whether the parties had earlier been divorced according to the law of Pakistan. Her Honour determining that the marriage concerned had not been dissolved according to Pakistani law.[2]
[2] See Maider &Carrigan [2008] FamCA 862
[Q] is not a signatory to the Hague Convention on International Child Abduction[3] nor is Pakistan. The Hague Convention is a multilateral treaty that provides an expeditious method to return a child internationally abducted from one member nation to another. The intent of the Convention is to ensure the prompt return of children who have abducted from their country of habitual residence or wrongfully retained in a contracting state which is not their country of habitual residence. Australia is such a contracting state.
[3] Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 hereinafter referred to as “the Hague Convention”
The applicant fears that if the children leave Australia to spend time with the respondent and he determines not to return them to her in Australia she will be unable to achieve the return of [X] and [Y] to her care through legitimate legal channels because of an absence of a Hague Convention relationship between Australia and the two countries to which Mr Carrigan has significant connections – [Q] and Pakistan.
For his part, Mr Carrigan points to his strong connections with Australia to assuage both the concerns of both the applicant and the court. His parents are long-term residents and citizens in this country and own a home in suburban Adelaide. They are prepared to provide their home as security to ensure the return of the children to Australia.
In addition, Mr Carrigan points to the fact that, if he did flout an order of this court by failing to return the children to Australia following a visit to [Q], he would be unable to return to Australia without the risk of being imprisoned.
It is Mr Carrigan’s case that, besides his relationship with his parents, both of whom are Australian citizens, he has other connections in this country, which he would not willingly give up. In future, as part of his employment with [Q], he would like to [occupation omitted] and, at some unspecified time in the future, he wishes to resume residence in Australia.
These proceedings are intended to resolve both these issues of controversy between the parties – the question of financial support and the issue of international travel. Both fall to be determined pursuant to the provisions of the Family Law Act 1975.
The issues
The relationship between the parties is an extremely poor one, which has been characterised by protracted litigation between them. The proceedings in the Family Court involved both property and children’s issues. They began in October 2006 and concluded, following a lengthy trial, in May of 2009.
The proceedings involved, as previously indicated, a contested divorce application; allegations of child sex abuse and family violence, including rape; and allegations of attempted parental alienation; amongst many other issues. The case also involved an application by the respondent’s parents, Mr J and Mrs M to spend time with [X] and [Y]. There is no doubt they to hold a jaundiced view about their former daughter-in-law.
Undoubtedly, the proceedings were difficult and expensive for all concerned. It is Mr Carrigan’s position that he remains indebted to his parents in a sum well in excess of $80,000.00 in respect of his legal fees. The applicant has represented herself in the current round of proceedings.
Ms Fredericks is aggrieved that her application for a lump sum departure of child support was unsuccessful at trial before Burr J. At that stage, it was accepted by the Family Court that Mr Carrigan, although no longer a resident of Australia but one of [Q], was likely to remain compliant with the then current administrative assessments of child support relating to [X] and [Y] and thus a lump sum departure order in respect of his future child support liability was both unnecessary and likely to be unfair to Mr Carrigan.
As discussed in Carrigan & Fredericks this proved not to be the case. In June of 2009, Mr Carrigan completed a questionnaire sent to him by the Child Support Agency which clearly raised issues regarding the end of his residency status in Australia and his permanent residency in [Q]. Ultimately the Registrar of the Child Support Agency determined that Mr Carrigan ceased to be an Australian resident and become a resident of [Q] in February of 2008 and this constituted a terminating event for child support purposes.
Thereafter, there were proceedings between the parties in the Child Support Agency and the SSAT regarding this decision, which culminated in the declaration made by me to which reference has already been made. This declaration came about as a result of an appeal by Mr Carrigan regarding a decision of the SSAT.
It is Ms Fredericks’ position that Mr Carrigan’s conduct during the trial before Burr J, particularly his undertaking to pay child support as assessed from time to time, which subsequently proved to be of no value to her in monetary terms, is ample evidence of Mr Carrigan’s potential for perfidy.
In particular, Mr Carrigan provided an undertaking to his Bank directing payment of child support “in accordance with all assessments issued from time to time by the Child Support Agency.” This undertaken has proven to have no material consequence for Fredericks. Essentially, she fears that he is not to be trusted if [X] and [Y] leave Australia, particularly in the absence of Hague Convention protection.
On the other hand, Mr Carrigan asserts that he never made any secret of the fact, during the proceedings before Burr J, that he was living in [Q] and intended to remain so. As such, he denies any mala fides, on his behalf, regarding his action in informing the Child Support Agency that a terminating event had occurred in respect of the administrative assessment of child support applicable to him.
It is not the purpose of these current proceedings to re-canvas the painful and controversial issues which arose in the first case. However, the parties’ history of mutual animosity is relevant to a consideration of the respondent’s application to travel with the children, outside of Australia, to a non-convention country. One thing is abundantly clear from the history of the matter to date – the parties neither like nor trust one another.
It is essentially the applicant’s position that the respondent is capable of anything to spite and hurt her, including depriving [X] and [Y] of their central emotional relationship with her, during the remainder of their respective childhoods. It is her further position that Mr Carrigan “would do anything to have his only son [X] live with him in [Q].”
Implicit in her position are the assertions that either Mr Carrigan is capable of inflicting severe economic distress on his parents in furtherance of his aims to do her harm or that Mr and Mrs J share their son’s outlook on life and would so be willing to suffer severe financial sanctions to assist in the furtherance of their son’s aims.
The tone of much of Ms Fredericks’ case is that Mr Carrigan is some sort of Islamic fundamentalist, who went to extreme lengths to obtain a Fatwa against her in Pakistan in 2008 from a Muslim Cleric. She also asserts that he and his family do not hold attitudes towards woman, which are in accord with the values of a liberal democracy such as Australia.
In addition, it is the applicant’s case that neither [X] nor [Y] would be able to cope in an “Arab country” such as [Q], even for a limited period of time, such as a school holiday. She describes the children as being “westernised” and speaking English as their sole means of communication. The implication being that they are likely to feel isolated and frightened in [Q].
Mr Carrigan’s position is that he is a secular Muslim, as are his parents. He concedes that he remains bitterly disposed towards the applicant, whom he regards as unreasonable and manipulative. Mr J has deposed his view that Ms Fredericks has made malicious and false accusations against his son, resulting in “pointless litigation” between the parties.
In the earlier proceedings, a family report was prepared, at a stage when [X] was nine and [Y] was five. The report was not in favour of the children travelling overseas. It was reported as follows:
“The writer is not in support of this proposal at this time, given the extent of the animosity between the parties and there being no Hague Convention agreement between [Q] and Australia. Further, although in other circumstances it is possible that [X] could benefit from visiting his father overseas. [Y] is considered to be too young, and her relationship with her father not yet strong enough to assist her in managing the demands that would be placed on her in this situation (e.g. being away from her mother for a longer period of time).”
It was in the context of this report that Mr Carrigan did not pursue his application for the children to travel to [Q] to visit him. However, as previously indicated, the negotiated final children’s orders of 11 February 2009 were posited on the basis that Mr Carrigan would be able to pursue such an application at a later stage, presumably when both children were more mature and the regime of him visiting them during school holidays in Adelaide, had been consolidated.
However, there has been no updating of the family report, which is now around three and a half years old. Accordingly, I do not have access to any independent assessment regarding the current psychological needs of the children, particularly how [Y] would cope outside Australia away from her mother and what is the current state of the children’s relationship with their father.
In my view, this is a significant deficit in the evidence available to me. The current round of proceedings began in response to the uncertainty surrounding the provision of financial support for the children and were initiated by Ms Fredericks. Mr Carrigan, as he is entitled to do, has utilised the case to bring his application regarding overseas travel. However, necessarily his time in Australia has been limited, as are his means, and these factors seem to have precluded a further family assessment report. Certainly, neither party has agitated for such a report.
This is not an end to the deficits in the evidence before me.
Mr Carrigan characterises [Q] as a modern, wealthy country and his home there as being one with every western convenience. As a non-[Q] citizen, it is his position that he would not be able to access any legal process in that country to legitimise his retention of [X] and [Y], who could only enter the country on tourist visas, which would not be capable of conversion to any other kind of visa, such as to enable permanent residence.
In addition, Mr Carrigan denies that he has any intention or desire to return to live in Pakistan, a step which he would categorise as retrograde to his aspirations to advance as an [occupation omitted]. Essentially, it is his case that Ms Fredericks is intent on “dog whistling” a stereotypical view of him as some kind of Islamic fanatic, who will do anything to secure possession of his only son.
These are difficult issues to assess in the context of adversarial proceedings such as these, where credit falls to be assessed, only according to how the parties (and indeed Mr J) present in the witness box. Necessarily, this is a somewhat artificial process. I acknowledge that I must be careful not to succumb to any impulse to stereotype either of the parties in any way.
However, the fact remains that I have received no independent evidence as to the nature of the legal system in [Q] or what its immigration policy is. Nor have I received any independent or expert evidence regarding Islamic family law generally, not that any such law is likely to be homogeneous in its nature, but inevitably will vary according to the branch of Islam concerned and the country involved.
Ms Fredericks characterises Pakistan as being a country where corruption and bribery are endemic. I am not in a position to make any such value judgments about Pakistan, nor its citizens. In addition and fundamental to my role in this case, I must be careful not to make generic judgments about Muslim men but must confine myself to any necessary findings of credit to the evidence of the parties themselves in the current proceedings before me.
Essentially, in this very difficult case, I must be careful to guard against hysterical overreaction in either direction. However, there can be no disguising the fact that a mischaracterisation, on my part, of
Mr Carrigan’s bona fides has the potential to have catastrophic results so far as [X] and [Y] are concerned.
The irony of this case is that, notwithstanding the acerbic relationship between the parties, [X] and [Y] have been able to see their father during his regular visits to Australia. Ms Fredericks’ evidence is that the children love their father and she is (ostensibly at least) supportive of their relationship with him. There is no evidence to indicate anything other than that the children have a positive relationship with their father and know him well.
There is no suggestion that Ms Fredericks has ever contravened the children’s orders of 11 February 2009. She has also ensured that the children see their paternal grandparents each month. The respondent is critical of the applicant for not ever being willing to depart from the amount of time allocated to him, in the orders of 11 February 2009 and allow him extra time with [X] and [Y], when he is in Australia.
The orders of 11 February 2009 envisage Mr Carrigan spending time with the children as follows:
·Nine days in the April school holidays;
·Seven days in the July school holidays;
·Ten days in the September school holidays;
·Twenty-one days in the December/January school holiday;
·Three occasions each year, during school term, of up to five days in duration;
·At other occasions as agreed between the parties.
It is Mr Carrigan’s position that the time is now ripe to normalise his relationship with the children. He is entitled to forty-two days annual leave, whilst pursuant to the orders of 11 February 2009, he is entitled to a minimum of sixty-two days of time to spend with the children.
Mr Carrigan has given evidence that it is time consuming for him to travel to Australia and he cannot always be guaranteed of reliable connections. In addition, he often has “down time” in respect of his employment commitments with [Q], which sees him at home in [D].
In all these circumstances, it is Mr Carrigan’s position that it would be easier for the children to come and visit him in [Q], rather than visa versa. In addition, he would like the children to have the opportunity to see him in his home environment and interact with his current wife, Ms C, to whom he has been married for around five years.
The applicant is an intelligent and articulate person. She holds a PhD in business and is employed as an academic researcher. She has prepared several lengthy affidavits for the case, as well as her own comprehensive written submissions of some thirty-five pages. I have no doubt that she is thoroughly conversant with all the legal issues arising in the matter and is more than capable of arguing her case.
However, overall, I consider her likely to be lacking in objectivity as to the potential dangers for the children lying in [Q] and I further consider her views regarding the Machiavellian cunning of the respondent to be overblown, as is her opinion that Mr J harbours a desire to reek “retribution” on her as a result of the failure of the marriage between the parties.
There can be no doubt however that Ms Fredericks has considered every possible objection to the children travelling outside of Australia and has adequately put each of them, both in her evidence and submissions. As befit her background as a [omitted], she has turned up a number of authorities, which support her position.
In contrast to the applicant, the respondent was represented by experienced counsel. However, he prepared much of his own documentary evidence. This was not nearly as extensive and well prepared as the material prepared by Ms Fredericks and lacked detail, particularly in respect of financial matters.
In respect of the issue of child maintenance, the central issue in the case is an obvious and simple one – the level of Mr Carrigan’s remuneration from [Q]. It was not until the completion of the evidence in these proceedings that he provided a one page letter, under the hand of the Senior Manager – HR Services for [Q] that any definitive evidence was provided by Mr Carrigan as to his level of salary with the [company]. This letter indicated that his salary was [currency omitted] 19, 100.00 [4] per month as from April 2010 onwards. However, this letter did not indicate that Mr Carrigan received any other allowances, which could be otherwise equated to cash benefits.
[4] [currency omitted]
In addition, during his evidence, Mr Carrigan indicated that he operated two bank accounts. He has not provided copies of the statements relating to these accounts to either the applicant or the court. In addition, he has not provided any evidence, in independent form, as to the cost of his living expenses in [Q] to enable any form of comparison to be made into Australian dollars.
The parties to maintenance proceedings, brought under the Family Law Act 1975, in this court, are under a duty to make a “full and frank disclosure” of his or her financial circumstances. This duty arises in any proceedings where there is a requirement on a party to file a statement of financial circumstances.[5]
[5] See Federal Magistrates Court Rules at Rule 24.03 & 24.04
It is my finding that Mr Carrigan has been somewhat lackadaisical in respect of his obligations arising under this rule. Although I consider him to be a generally honest person, I have some concerns that he is not completely candid about his financial circumstances. For fairly obvious reasons, I consider that it would be his preference to minimise his child support liabilities so far as is possible.
The tone of some of his past correspondence with the Child Support Agency is that he regards it and indeed Ms Fredericks as having an unrealistic view of his earning capacity and remuneration. The impression I have from his evidence is that he regard the applicant’s attempts to obtain child support from him as being, at least in part, punitively motivated.
The assessment made by the Family Court that Mr Carrigan would “honour his periodic child support obligations as and when they fall due” as a consequence of the potential application to him of a departure prohibition order has proven to be misplaced, but perhaps not in the manner envisaged by Ms Fredericks. Mr Carrigan did provide the irrevocable authority to the HSBC Bank that would require the Bank to automatically deduct child support payments from his recurrent salary, as directed by Burr J.
However that authority became redundant when, as a consequence of the child support terminating event arising from Mr Carrigan’s change of residency status, no such child support assessments were in fact issued to him and the potential sanction of a departure prohibition order foreseen by Burr J had no application to his circumstances.
From Ms Fredericks’ perspective this chain of events has clear implications for the court’s overall assessment of Mr Carrigan’s credibility – essentially he did not do what he said he would do – pay child support regularly. I am not convinced that the events in question can be so simply boiled down.
Both parties were legally represented in the lengthy proceedings before Burr J. There was no secret during the case that Mr Carrigan was living and working in [Q] and likely to remain there for a significant period of time. It would not have been a complex task for those involved to make inquiries as to whether [Q] was a reciprocating jurisdiction for child support purposes.
Why this issue was not canvassed at the trial is unclear to me. Rather all concerned seem to have concentrated their minds on the issue of the lump sum departure aspect of the case, which was strongly advanced by Ms Fredericks and resolutely resisted by Mr Carrigan. All concerned seem to have acted under the misapprehension that Child Support Agency assessments could remain current notwithstanding
Mr Carrigan’s change of residency.
In defence of the persons involved in the trial, it should be pointed out that there had been proceedings before the Child Support Agency, in mid 2008, which were concerned with the appropriate level of child support income to be attributed to Mr Carrigan upon his commencement of employment with [Q]. These had been initiated by Ms Fredericks and were concluded before the commencement of the trial before Burr J. No-one, including officials at the Child Support Agency, seems to have been concerned about any possible jurisdictional issues arising from Mr Carrigan’s relocation to [Q].
In all these circumstances, it seems to me to be improbable that
Mr Carrigan had a clear understanding of the child support implications of his move to [Q] and decided to keep the knowledge “up his sleeve” so that, in Machiavellian fashion, he could later spring the terminating event on Ms Fredericks and negate his undertaking to the court. Certainly the Agency itself seemed to be unaware of any difficulties potentially arising from its change of assessment made on 15 August 2008.
Ms Fredericks relies on an email which was sent to the respondent’s father on 16 October 2008 to found her assertion that Mr Carrigan was deceitful about his understanding of the possible ramifications of his expatriate status on child support matters.[6] In my view the correspondence concerned does not support this contention. It is at best ambivalent in its contents, as it states that a person can still be liable for child support, although not an Australian resident.
[6] See annexure E to the applicant’s affidavit filed 20 September 2010
In all the circumstances of this case, it seems more reasonable for me to act on the assumption that the intentions of Mr Carrigan and his legal advisors in respect of the child support aspects of the case at trial were based on ignorance rather than duplicity, an ignorance which was shared by Ms Fredericks and those advising her.
Accordingly, I do not accept that this issue alone is relevant to the assessment of Mr Carrigan’s credit. However the fact remains that he did not pay child support to Ms Fredericks for a significant period of time, when he became aware of the lacuna concerned and has not readily availed himself of any opportunities to pay her child support voluntarily.
Mr Carrigan is not required to pay income tax on his earnings in [Q]. Obviously, this is a significant benefit for Mr Carrigan and renders a comparison with similar wage earners in Australia problematic. In particular, the formulaic calculations of child support made by the Child Support Agency are based on statistical information gathered by the Australian Bureau of Statistics, which include cost of living data and average wage earning.
Given Mr Carrigan’s expatriate lifestyle in [Q], it is difficult for the court to assess what are his reasonable living expenses in that country, when compared to the situation for a similar wage earner in Australia. Child Support formulations may not be helpful. For example, if
Mr Carrigan’s recurrent living expenses are modest, particularly if he is provided with rent free accommodation, a salary which may be small by Australian standards might be regarded as comfortable or even generous in [Q]. The absence of taxation liabilities may also add to potential anomalies.
Due to the globalisation of the world economy, the Australian Dollar floats in value against other currencies, including the [omitted]. Accordingly, the purchasing power of a [omitted], when converted into Australian Dollars, is likely to be uncertain in future and subject to the vagaries of the world economy.
Accordingly, given these various factors, the assessment of what is the “proper” level of child support payable by Mr Carrigan becomes somewhat problematic. It is not an easy exercise to compare a person’s financial circumstances in the context of two very different countries and economies. In this case, I do not have any independent data as to the cost of living in [D]. Accordingly, in my view, these factors render it all the more imperative that a party makes a full and frank disclosure of his or her financial circumstances in these types of “expatriate/overseas” child maintenance cases.
Another significant logistical difficult is created by the unusual circumstances of this case. I have already indirectly alluded to the difficulty. As a result of my decision following the SSAT Appeal, the date of the terminating event, for child support purposes, was held to be 17 January 2008.
It was not until December of 2009 that the Child Support Agency formally determined that a terminating event had occurred as a result of Mr Carrigan’s relocation to [Q]. Mr Carrigan had formally raised the issue of his relocation with the Agency in that year. Nonetheless in accordance with earlier assessment Mr Carrigan paid child support to the Agency between January 2008 and August of 2009.
These payments were initially characterised as being “voluntary” by the Agency, but more recently have been categorised as an “over payment” by Mr Carrigan to Ms Fredericks. As a consequence, as at 17 February 2010, Mr Carrigan was held by the Child Support Agency to be in credit, in respect of his child support obligations to
Ms Fredericks, in a sum of $34,984.18.[7]
[7] See Exhibit A
Ms Fredericks, in her application filed on 20 September 2010, seeks payment of child maintenance from 17 January 2008 onwards, with the intent of negating the invalid payments of child support made earlier by Mr Carrigan in accordance with the now voided child support assessments.
As at the date of the trial before Burr J., Mr Carrigan was assessed to pay child support to Ms Fredericks at the rate of $1,633.00 per month.[8] This assessment was as a consequence of an administratively conducted departure application brought by Ms Fredericks in May of 2008, which was dealt with by an Agency senior case officer on 15 August 2008, who found Mr Carrigan’s child support income to be $120,000.00.
[8] See Maider & Carrigan [2009] FamCA 483 at paragraph 56
This led to an annual child support assessment of $20,282.00, which equated to a weekly sum of $388.70 and a monthly sum of $1,690.00. This assessment seems to have been the basis of the “over payment” which has arisen between 17 January 2008 and August of 2009. How this overpayment is to be offset against any subsequently made child maintenance order is an issue which must be approached cautiously and with an eye attuned to the possibility of unforeseen consequences.
In order to ameliorate the prejudice caused to Ms Fredericks and the children by the delay in the completion of these proceedings, on 15 July 2011, an interim order was made that Mr Carrigan pay
Ms Fredericks a monthly sum of child maintenance fixed at $870.00. This order was predicated on the basis that Mr Carrigan undertook not to seek recovery or other offsetting of this amount against the credit currently standing in his favour in the accounts of the Child Support Agency.
Accordingly, this calculation is also liable to be taken into account when the court calculates its final award of child maintenance payable by Mr Carrigan on account of [X] and [Y]. Again, some care must be taken not to create unforeseen accounting anomalies so far as the Child Support Agency and the parties are concerned.
As a consequence of the property proceedings between the parties, concluded by order of Burr J., Ms Fredericks was required to pay to
Mr Carrigan the sum of $90,000.00 to acquire his interest in the former matrimonial home. The sum was to be paid in August 2009. Originally Ms Fredericks opposed paying any monies to Mr Carrigan and wished any sum due to him by way of property settlement to be retained to affray future child support liabilities.
Ms Fredericks contents that there can be coincidence that Mr Carrigan ceased paying child support to her pursuant to the Agency’s assessment, in August 2009, as soon as she had paid him his property settlement monies. I agree that it challenges credulity to assert that the two matters are not linked. It further confirms my finding that
Mr Carrigan is not well disposed towards Ms Fredericks and inclined to avoid advancing monies towards her if at all possible. In my assessment, he does not come into the financial aspects of these proceedings with completely clean hands.
Notwithstanding all the conflict between the parties concerned and the uncertainty of the evidentiary framework, the fact remains that the court must make two decisions which are likely to be central to the future welfare of [X] and [Y] – what is the proper level of financial support which Mr Carrigan should provide them – and is it likely to be in their best interests to spend time with their father outside of Australia.
The legal principles applicable
a) Child Maintenance
The parties’ respective applications in respect of financial provision for [X] and [Y] falls to be determined according to the provisions of 7 of Part VII of the Family Law Act. This division deals with the making of child maintenance orders and the objects and principles, which are relevant.
Section 66B sets out the objects of the division. These include ensuring that children receive a proper level of financial support from both their parents; that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both parents; and that parents share equitably in the support of their children.
Section 66C places the primary duty of maintaining children upon the parents of those children. This duty has priority over all other commitments a parent has other than those commitments necessary for a parent to support him or herself or any other child he or she has a duty to maintain.
In the present case, the duty to support [X] and [Y] financially resides solely with Mr Carrigan and Ms Fredericks. The court must ensure that this duty is met, as far as possible, equitably by both of them from appropriate shares in each of their respective incomes, assets and financial resources, depending on their earning capacities. In essence, the law requires parents to share the burden of maintaining their children, according to the level of their respective means, so far as this is equitable.
The approach the court must take in assessing a child maintenance order is set out in s.66H. It is essentially a two step process. Firstly, the court must consider the level of financial support necessary for the maintenance of the child concerned. The relevant matters to be considered are set out in specific detail in s.66J.
Secondly, the court must determine what contribution each parent should make to providing that financial support. The matters to be considered specifically in regards to this second step are set out in s.66K.
Section 66J directs the court to assess the “proper” need of the child concerned in fixing an appropriate level of maintenance. In so doing, the court must have regard to the age of the child concerned and the manner in which the child is being, and in which the parents expected the child to be, educated. In appropriate circumstances, in assessing the needs of any child, the court may have regard to any published research relating to the costs of maintaining a child.
Section 66K delineates the matters the court is required to take into account in determining the contributions which parents should make towards the financial maintenance of their children. These matters include the following:
·The income, earning capacity, property and financial resources of the parents concerned;
·The commitments of each of the parents that are necessary to enable that parent to support him or herself or any other child or another person that parent has a duty to maintain;
·The direct and indirect costs incurred by the parent with whom the child concerned lives in providing care for that child;
·Any special circumstances which, if not taken into account, would result in either injustice or undue hardship to any person.
Pursuant to the provisions of s.66E, the court is specifically prohibited from making a child maintenance order if an application for administrative assessment of child support could be made pursuant to the Child Support (Assessment) Act 1989. However, the child support assessment regime may be relevant to the making of a child maintenance order in certain circumstances.
The relevance of the child support formula
As I understand a number of decision of the Family Court, in particular Beck v Sliwka,[9] although I am not bound to follow the Child Support Assessment Scheme in making judgments under the child maintenance provisions of the Family Law Act, in some situations the scheme may provide a useful guide or yardstick for determining such cases.
[9] Beck v Sliwka (1992) 15 FLR 520
In Beck v Sliwka, the Full Court (Nicholson CJ & Fogarty J) held that:
Whilst it must be emphasised that under the Family Law Act the court is required to consider the facts of the individual case in accordance with the structure in Division 6, nevertheless in the sort of case with which we are concerned now and which is not untypical of many cases litigated both in this court and in the Magistrates Court, and where the issue is the capacity of the non-custodian to make an equitable contribution to the costs of the children, it seems not unreasonable to at least pay regard to the formula in determining the amount of a Stage 1 order.
The law relating to child support has recently been significantly amended by a number of pieces of interrelated legislation, one of which is the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 which, in part, changed the formulaic basis for the administrative calculation of child support arising under the Child Support (Assessment) Act 1989.
The intent of the various new applicable formulae was said to be that they would be more reflective of the actual needs of children affected by the child support system, as they would be based on actual empirical research, as well as the capacity of their parents to pay such child support. The amendments concerned were also said to be fairer, as they provided more recognition of the various possible graduations in the division of parenting time between the parties to a child support assessment.
In his second reading speech regarding the new legislative regime, Mr Brough, the relevant minister at the time, said as follows:
“The new formula, on the other hand, will explicitly be based on the costs of children, as drawn from Australian research showing the real cost of children for the level of their parents’ income and the children’s ages. An ‘income shares’ approach will be used so both parents will have the same amount deducted as self-support, both parents income will be taken into account in establishing the costs of the children, and the resulting costs will be apportioned between the parents according to their share of the combined income.”[10]
[10] See Hansard (House of Representatives) for Thursday, 14 September 2006 at page 1
These aspirations are recognised in section 4(2)(b) of the Child Support (Assessment) Act, which indicates that the level of financial support to be provided by parents for their children is to be determined according to their capacity to provide such support, which should be determined with the actual costs of children.
The basis of the application of the formula remains the respective taxable income of each parent concerned. Doyle[11] has described the eight step application of the basic child formula as follows:
·Step 1 – Work out each parent’s taxable income for the last relevant year of income. This includes adjustments for other income components including net rental property losses and reportable fringe benefits. Deduct from this sum each parent’s self support amount, which is currently $20,594;
·Step 2 – Work out combined child support income by adding each parent’s child support income;
·Step 3 – Work out each parent’s income percentage for the child. This is each parent’s adjusted taxable income less the self support amount and less allowances for other relevant dependent children. It is regarded as the base level of income available to be contributed towards the support of the children concerned in the applicable assessment;
·Step 4 – Work out each parent’s percentage care for the children concerned. This relates to the number of nights each year a child is the care of each of his or her parents and represents the direct costs a parent is taken to have contributed to any child concerned;
·Step 5 – Work out each parent’s cost percentage care for the children concerned. This relates to a stepped level of care for any child affected by the assessment concerned. It does not relate to the specific number of nights the children spend with each parent. A fixed percentage of 24% applies between 14% and 35% of nights. From 35% the cost percentage increases by 2% for every 1% of nights until it reaches 65% of nights;
·Step 6 – Work out each parent’s child support percentage for the children concerned. This represents the percentage share of the costs that each parent is required to meet based on their share of combined income after deducting care provided directly to the children concerned;
·Step 7 – Work out the costs of the children concerned by reference to the statutory tables contained in section 55G of the Act. These figures are up-dated annually by reference to the Male All Income Average Weekly Earnings Trend published by the Australian Bureau of Statistics [MTAWE]. The cost of children is referenced to the ages of the children concerned and the income bracket into which their parents’ combined child support income falls;
Step 8 – Work out the child support payable. This is done by multiplying the parent’s child support percentage by the statutorily based costs of the child.
[11] Bruce Doyle: Complications and Intricacies of Child Support Post 2008 Reforms Sixth Annual Family Law Summit Brisbane June 2009.
As came be seen from this description, the eight step process relies on the input of a significant element of statistical material arising from an Australian context. This level of input may render the application of the formula to income and expenses of a parent who lives outside of Australia problematic.
The secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) is required to publish annually tables setting out the costs of children. In 2012, the costs of providing for two children under 12 years of age, where the combined child support income of the parents concerned was over $162,163 per annum, was capped at $30,811.00 regardless of increases of parental income over this amount.
The annual costs of children tables also recognise that it costs parents more to provide financially for older children. Thus the cost of providing for two children aged over 13, in 2012, again where the combined child support income was over $162,163.00, was capped at $37,297.00 per annum. In the same circumstances, the cost of children of mixed ages (one over thirteen one under thirteen) was capped at $34,054.00.
The costs of children tables provides actuarial figures for the costs of children, in an Australian context, relative to the ages of the children concerned and the combined income of their parents. It is more problematic to allow idiosyncratic increases in the amounts of maintenance to be paid for older children under the less nuanced provisions arising under the Family Law Act.
Accordingly, under the formula, it is the costs of children which are capped, as well as the child support income of their parents. The rationale for this capping being that the empirical costs of providing for children level off as parental income increases.
Essentially, the dollar costs of children increase with family income but decline as a proportion of that income, with the difference being allocated to discretionary spending. Therefore it represents an unfair distortion to assess child support on the basis of a raw percentage of parental income.
In terms of the maximum amount of child support payable, it will be referenced to 2.5 times the “male total average weekly earnings (MTAWE)” and apply to the parents’ concerned combined income. This figure is also annually calculated by the Australian Bureau of Statistics.
Under the applicable child support legislation there are provided various mechanisms to alter the administratively applied formula if special circumstances exist which warrant such a departure. Applications can be made to the Registrar of the Child Support Agency to depart from the formula and ultimately to a court of appropriate jurisdiction.
It must be demonstrated that it is just and equitable to depart from the applicable child support formulation and one of a specified number of grounds for departure has been met. The grounds for departure include the following: high costs involved in spending time with a child; the manner in which the parents concerned expected the child to be educated; the assessment is not properly reflective of the income, property and financial resources of the parents concerned.
Accordingly, I acknowledge that it is somewhat artificial to apply even the basic formula to the circumstances of the parties in this case. In addition the formula, for obvious reasons, makes no reference to the fact that, in the present case, Mr Carrigan pays no income tax and his costs of living expenses are not referable to Australian standards.
However, in my view, the Costs of Children Tables, as published each year, are relevant to the exercise of the court’s discretion in a children’s maintenance application under the provisions of the Family Law Act given the contents of section 66J.
Such published material, germane to the costs of providing financial support for children, may be relevant to establishing, at least in part, what are the proper costs of support any relevant children, given that generally speaking these costs vary depending on the income of the parents concerned. The Costs of Children Tables are particularly significant in this regard given the context in which these costs are calculated – the integrity of the formulaic calculation of child support in Australia.
b) Overseas travel
Part VII is the part of the Family Law Act 1975 which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. Accordingly the issue of whether the children concerned in this case should or should not travel to [Q] (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of any child concerned as the paramount or most important consideration [section 60CA].
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a) 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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
In this context, Mr Carrigan places significant emphasis on the benefits which will likely come to [X] and [Y] from being able to interact meaningfully with him in the day to day context of his normal life and get to know his current wife better. It is his case that the children will be able to spend more and better quality time with him in [Q]. In addition, he would categorise the opportunity for the children to travel overseas to visit him as likely to be a rich experience for them.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[12]
[12] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[13]
[13] See Line & Line (1997) FLC 92-729 at 83,846
As with many cases arising under the Family Law Act concerning children, the case herein concerns an assessment of potential risk.
Mr Carrigan would categorise the risk arising as low because of his significant connection to Australia and the security which his parents are prepared to advance.
On the other hand, Ms Fredericks would categorise the risk arising from the children travelling outside of Australia as being high and, as such, one which it is unacceptable for the court to take. She argues that there is a measurable and appreciable risk that Mr Carrigan may be willing to sever, for ever, the rich and significant relationship the children have with her by retaining them in either [Q] or Pakistan, which are countries beyond the reach of the Australian Authorities.
Her case, in large part, centre on concerns that the respondent is capable of not returning the children to Australia, as he has promised to do, because of his abiding antipathy for her. In support of this contention she points to the acerbic and protracted nature of the litigation between the parties over many years.
Subsidiary to this main contention, she asserts that the travel is not in the children’s best interest because they will find [Q] foreign and alienating and, in the case of [Y], she is too young to be away from her mother for a protracted period. All these matters must be referenced to the high level of conflict between the parties.
All assessments of risk require a degree of prognostication about the future, which of course can never be known in advance. As Cronin J said in Gin & Hang:[14]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[14] Gin & Hang [2010] FamCA 617
In this case, in my view, the responsibility of the court is to attempt to quantify the degree of risk arising in an objective and rational manner and determine whether the risk of the parent concerned not returning the children to Australia as directed one which is not reasonable for the court to accept in all the circumstances prevailing. There may be a risk or some risk of non return because such an eventuality can never be definitively ruled out. The question in cases of this nature is the degree or quantification of the risk concerned.
As previously indicated, Ms Fredericks has relied on a number of authorities to support her position in respect of the issue of overseas travel. In my view, comparisons arising in respect of the issue of overseas travel for children are not usually helpful, as the circumstances of any children and parents concerned and the travel proposed can vary so widely. As such it is generally unwise to be unduly prescriptive about the exercise of discretion in such matters, particularly as it is the responsibility of the court to deliver an idiosyncratic outcome depending on the individual circumstances of the parties and children concerned.
However here, for the sake of completeness, are brief summaries of the cases cited by Ms Fredericks. Firstly, Gin & Hang itself. The mother of a very young child proposed travel to China, which is not a signatory to the Hague Convention. The applicant’s parents were person who apparently travelled frequently because of business interests in China and were described as being “very wealthy”. The applicant and the father of the child concerned who opposed the travel had recently sold a property in Australia for a significant sum of money.
The applicant was an Australian citizen, who was not recognised as a Chinese citizen by the Chinese authorities, as she had renounced her Chinese citizenship. Her parents continued to have business interests in Australia. The purpose of the proposed travel was to visit an elderly relative who was ill. The applicant’s portion of the proceeds of sale of the parties’ recently sold Australian property was offered as security.
Cronin J held as follows:
“I am not satisfied on the balance of probabilities that there is any basis to find that the risk that the wife would deliberately not return the child is a significant one.
I am satisfied that there is sufficient security to ensure the return of the wife within the Chinese legal system in the event of her non‑return. Whilst the purpose of the bond is often spoken of as being a form of security such as bail in a criminal matter, it is more to protect a person such as the husband in being able to quickly access the relevant sum to enable the instructing of lawyers, the payment of costs and the necessary travel required to obtain the return of the child. The restraint on the whole of the sale proceeds is more than sufficient for that purpose.
I am satisfied that because of the wife’s citizenship status in Australia and also her ties here, the risk of non-return is low. That view is supported by the evidence above. The assets here and the life already set in train over the last seven years by the wife reduces her possible motives not to return.”[15]
[15] Ibid at paragraphs 68-70
The other case to which Ms Fredericks has referred is Cadena & Beltran[16] a decision of Halligan FM. The child concerned was three years of age. The applicant in the case was a Brazilian national by birth, who wished to travel to that country annually with the child to renew familial connections there. Brazil is a Hague Convention country.
[16] Cadena & Beltran [2010] FMCAfam 1165
The applicant’s connections with Australia were described as being “tenuous”. She was a medical practitioner by profession but her qualifications were not recognised in Australia. Accordingly she had a strong incentive to remain in Brazil, where she would have been able to practice as a medical specialist. The applicant’s family was wealthy.
Halligan FM considered that there was a “real risk” of the child not being returned to Australia but also likely benefits to him of travelling to Brazil, provided the risks of non return could be minimised. In these circumstances, travel was permitted but with a surety of $200,000.00, which was subject to reduction to $50,000.00 in the event the applicant obtained medical recognition in Australia and obtained permanent residency in this country. I do not find the circumstances of this case to be particularly helpful to the present matter.
Another overseas travel case, not cited by Ms Fredericks, is Bray & Constable[17] a decision of Kelly FM. The case has some similarities to the present matter. The parties concerned had commenced their relationship in Australia separating in 2006. The applicant had obtained employment, initially on a fly in/fly out basis, in the United Arab Emirates. He was involved in the security industry.
[17] Bray & Constable [2011] FMCAfam 1397
The parenting relationship between the parties concerned was described as “hostile and highly conflictual”. The applicant wished orders to be made authorising the parties’ 11 year old son to visit him in Dubai during school holidays. The UAE is not a signatory to the Hague Convention. Apart from his employment in the UAE, the applicant did not have strong pre-existing ties in the country, although his current wife and young child lived there at the time of his application.
The applicant was Italian by background. He was considered to have strong ties in Australia. The child had a strong relationship with the applicant and had expressed a wish to spend time with him in the UAE. The applicant was not in a position to offer any financial surety to guarantee return.
Kelly FM considered that the child was likely to benefit from the opportunity to travel overseas, in the sense of having his horizons and experience broadened. She further did not consider that it would be unsafe for the child to spend time in the UAE per se, taking judicial notice of the fact that there are many expatriates (and their families) living in the country and it is frequently transited by tourists.
Kelly FM was provided with “limited information” regarding the legal system applied in the UAE, which described the system as being “uncodified Islamic…and family law matters are heard by Sharia Court.” As such, she accepted that the mother would find it almost impossible to seek any effective redress for the return of the child through the legal system in Abu Dhabi.
Issues arising from the parties’ poor and mistrustful parenting relationship and the fact that it was found that the applicant had not been candid with the mother about topics of major importance to the parenting of the child seem to have been influential in leading Kelly FM not to allow the travel concerned, when coupled with the fact that there could be a relationship between father and son in Australia.
Kelly FM found as follows:
“I am not satisfied that the father’s current determination to return [X] would prevail in circumstances where he may genuinely believe his son was at risk in the mother’s care. Given the father’s general attitude towards Ms Constable, it may not take very much by way of complaint from [X] for Mr Bray to decide that [X]’s physical or emotional safety could only be guaranteed if the child remained in his care, in Abu Dhabi.
Ms Constable would experience a high level of stress and anxiety around any such overseas travel for [X]. This would invariably impact upon her present role as [X]’s primary caregiver. The mother believes that the father is sufficiently manipulative that he may indeed return [X] from any initial overseas trip before eventually failing to comply with the orders. Whether her belief is justified or rational, it is certainly a genuine fear that she holds. That is to say, she would continue to experience the same level of anxiety around each and every trip that [X] may undertake.
The father is unable to provide any surety or financial security for [X]’s safe return. While Mr Bray has strong family ties in Australia, his own family life is now based in the UAE, and will continue to be based there for the next five years.
I am not satisfied that it is in [X]’s best interests overall that the existing injunction should be discharged, in light of the above discussion. In the circumstances I dismiss the father’s application for [X] to travel with him outside the Commonwealth of Australia.”
The applicant’s evidence
The applicant was born in Pakistan [in] 1968. She is employed as a part-time [omitted]. Technically, she fills 0.6 of her position, which is remunerated at $69,513.00 per annum, giving her an annual salary of around $42,000.00.
In addition, she does some independent contract work, [occupation omitted]. Her taxable income for the year ending 30 June 2010 was $45,268.00.[18] I accept her evidence that her income for subsequent financial years falls within a similar range.
[18] See annexure G to the applicant’s affidavit filed 4 July 2011
The applicant chooses to work part time to enable her to discharge her responsibilities to parent [X] and [Y] as comprehensively as possible. Her position is that the children need structure, which she alone can provide. This is also her rationale for not being willing to unduly depart from the regime by which Mr Carrigan spends time with the children.
Ms Fredericks estimates that the costs of providing for [X] and [Y] is in the vicinity of $735.00 per week. The major items of expenditure being food ($100); holidays ($140); medical – dental and other related health expenditure ($70); clothing and shoes ($60) and household supplies ($27.50).
The applicant has also broken down household expenditure arising in respect of expenses such as utilities; telephone; and motor vehicle expenditure; and attributed a portion of these expenses to the needs of the children. Whilst I accept that this is a legitimate exercise on her part, as obviously the children consume these services, which are essential to their needs, I believe I must approach the applicant’s calculations with a degree of caution. The combination of
Ms Fredericks’ various calculations leads to her attributing the overall figure of $735.00 per week or around $38,000.00 per annum as the approximate cost of financially supporting the children.
Ms Fredericks has attempted to calculate every possible expense relating to the children, whilst they are in her household. She is not likely to undertake these calculations in a conservative manner. To the contrary, she is likely to err on the side of over-estimating the expenses arising rather than the contrary. In particular, she is unlikely to apply any discount to the various expenses involved by reason of the fact that they are applied over a household of four persons.
By way of example, Ms Fredericks has attributed the sum of $70.00 per week as the children’s share of her motor vehicle expenses. Ms Fredericks deposed that it cost her $60.00 each week to fill her tank. She justifies this expense on the basis that most of her travelling she does “for the kids”. This may be so, but I am concerned about the ambit nature of the calculation involved. Similarly with her household expenses, Ms Fredericks deposed that although she kept receipts, the calculation was a “rough estimate”.
Within the figure of $735.00 per week was included the children’s holiday expenditure. Last year the children visited the United States with their mother and Mr F to spend time with maternal relatives. In her statement of financial circumstances, the applicant deposed that the family’s holiday expenses were met by Mr F.
I accept that the children are likely to have benefitted in a significant way from having had the opportunity to travel to the United States. It seems to be the case that Ms Fredericks would like to return with them at some stage in the foreseeable future. But, in my estimation, such travel is not essential to the children’s welfare and cannot be regarded as one of the necessities of life. This expense should be deleted from the children’s costs of financial support.
[X] and [Y] appear to lead lives typical of children living in the middle suburbs of Australia. They attend public schools, which have modest fees and uniform requirements. They attend a range of extramural activities, which require payment. [Y] has had to undergo a lengthy and expensive process of orthodontic treatment, which cost $5,380.00. Such one off payments strain the financial resources of many middle income families in Australia.
The applicant has estimated the children’s medical, dental and optical expenses as being $70.00 per week and their pharmaceutical expenses as being $20.00 per week, which equates to $4680.00 per annum. Putting aside [Y]’s orthodontic treatment, this seems to be an excessive amount for non specific medical expenses.
Accordingly, I have come to the conclusion that the applicant’s estimate of the financial costs of maintaining [X] and [Y] must be regarded as something of an ambit claim. I would reduce this figure by withdrawing the amount allocated for the children’s holiday expenses and allowing a discount of 10% on the other expenses claimed to make provision for the largesse Ms Fredericks is likely to have applied to her various calculations.
In my view this discount is conservatively applied. In my assessment, Ms Fredericks is likely to run a tight ship in terms of her domestic outlays. She is a prudent person financially. Although she is a capable and loving parent, who would not want her children to be deprived of any opportunity or be deprived of any proper need, she cannot be regarded as an indulgent one. I reach this conclusion on the basis of the modest amounts attributed as the children’s expenses for food and clothing.
I appreciate that [Y] was quiet young when her parents separated and the immediate aftermath of that separation was a significant disruption in the children’s relationship with their father. It is Ms Fredericks’ view that [Y]’s relationship with her father is less well evolved than is [X]’s as a result of these factors.
I accept that [X]’s situation, given his greater level of maturity, is different to [Y]’s. Necessarily, his relationship with his father is likely to have been more robust when the parties separated. However, since the separation and more particularly since the court proceedings concluded in early 2009, [Y] has seen her father regularly and as such, it seems clear that she knows him well and has a close and loving relationship with him.
The intent of Burr J’s order, made on 11 February 2009, was for the children to have as extensive a relationship with their father, as was practicable, in the circumstances of him living in [Q] and the children living in Australia. Since that time, I am satisfied that Mr Carrigan has visited Australia as regularly as he can, given his work commitments and financial considerations.
As I have previously indicated, I accept that Mr Carrigan has elected to work overseas through economic necessity. I do not think his decision to live and work overseas indicates that he is either disinterested in the children or wishes to abrogate his responsibilities towards them. Necessarily, however, this decision must have implications in terms of the children’s entitlement to have a proper level of relationship with their father.
Although Ms Fredericks has many criticisms of Mr Carrigan, she accepts that the children love their father and benefit from having a relationship with him. This is not a case which centres on issues relating to neglect, abuse or family violence [section 60CC(2)(b)].
In my view, the benefits [X] and [Y] are likely to derive from maintaining this meaningful level of relationship with their father, into the future, is the most significant of the considerations arising under section 60CC of the Family Law Act. Accordingly, the first the primary consideration must be given pre-eminence in this particular case.
The word “meaningful” in section 60CC(2)(a) is to be construed in a beneficial sense. The court is directed to consider the benefits arising for children of have a meaningful relationship with their parents. Meaning, in such relationships, has both a quantitive and qualitative connotation. Relationships need both sufficient time and an appropriately conducive context in which to develop.
In my view, the rationale of the provisions of Part VII of the Family Law Act, is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in as many aspects as possible pertaining to their care. This optimal outcome will be achieved by the children concerned being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care.[29]
[29] See Goode & Goode (2006) FLC 93-286 at 80,901
However, for obvious reasons, the optimal outcome is not always achievable in every case, particularly in matters which involve one parent living far away from the children concerned, either through choice or necessity. In such difficult cases, the court must still strive to achieve the best possible outcome for the children concerned, whatever logistical circumstances prevail.
It is in this context that the father’s application to spend time with the children in [Q] must be examined. Pursuant to the orders of Burr J made on 11 February 2009, Mr Carrigan is entitled to spend around sixty days per annum with the children, provided the time takes place within Australia. It is his case that this is a significant period of time and a testament of his significance to the children, which the mother must be taken to have accepted, given she consented to the orders made.
Mr Carrigan wishes to modify this order so that, at least part of this time, can take place in [Q], where he and his current wife live. He does not wish to increase the time in question, which will remain largely confined to school holiday times.
I accept that the focus of Mr Carrigan’s life has shifted from Australia to [Q]. It is understandable that he would want to expose [X] and [Y] to his home environment, so that they can spend time with him in the context in which he lives and works. I also accept that the opportunity to spend time with their father in his home in [Q] will enable the children to understand their father’s life better and so add meaning to the relationship they have with him.
All things considered, in general terms, I accept that the children are likely to benefit from spending time with their father in [Q]. They will benefit in the sense of being able to spend time with their father and his current wife in the environment and context in which Mr Carrigan usually lives.
This will enable the children to place their father’s life in context and so give depth to the relationship they have with him. I also accept that the children are likely to benefit from having the opportunity to spend some time in a different cultural milieu. I accept, in general terms, that travel does broaden the mind.
If the children visit [Q], it will be a novel experience for each of them. Necessarily [Q] is a very different environment from suburban Adelaide or from the United States, a country which the children have recently visited with their mother. The novelty and adventure of the first visit and any subsequent visits will be a shared source of memory and anecdote for both the children and their father and so, in my view, will potentially add meaning to the children’s paternal relationship.
I turn now to the salient additional considerations arising under section 60CC(3). There is no independent assessment of the views of the children concerned [section 60CC(3)(a)]. In any event, the children are not likely to be in a position to present a considered view as to whether they would or would not like to spend time in [Q] with their father, given they have never experienced life there. What fears they have, if any, about travelling to the country are likely to come from sources extraneous to them.
Currently, as an exigency of their past care arrangements, the children’s most significant relationship is with their mother, who has been the main provider of their care for the vast majority of their lives to date. The children, having grown up together, are likely to be close and so can be anticipated to provide one another with both emotional support and companionship [section 60CC(3)(b)]. This is a relevant consideration when the question of the children travelling to [Q] together is considered.
In the context of this case, the ages of the children concerned and the possible effects of being separated from their parents are closely related considerations [section 60CC(3)(d) & (g)]. [X] is fifteen years of age. He is a seasoned traveller. Given his age and the strength of his relationship with his father, there seems little doubt that he would be able to sustain a period of three or four weeks away from his mother.
[Y], who is approaching her ninth birthday, is much younger. However, the orders on which the parties agreed on 11 February 2009, envisaged her spending twenty-one days with her father from the start of the December 2010 end of year school holiday. In these circumstances, I accept that [Y] too, given the strength of her relationship with her father, has the emotional resilience to be away from her mother for an extended period of time.
In the ordinary course of events, there would have been no restriction on Mr Carrigan taking the children to a locale, within Australia, far removed from Adelaide, for a period of some weeks. I appreciate that Australia is largely a homogenous environment, in a cultural sense, if not a geographic one. I also accept that travel to [Q] is likely to be a significantly different experience for both children.
However, both children have prior experience of travelling overseas. In [Q], they will be living with their father whom they know well. They will be living in a polyglot expatriate community. In addition, [Y] will have the emotional comfort of her older brother to guide her through any foreign experiences. In this sense, I do not accept that that children travelling to [Q] will result in them being unacceptably taken “out of their comfort zone”.
The court is directed to consider that practical difficulties and expense of a child spending time with a parent and the implication of those difficulties on the child’s entitlement to maintain personal relations with that parent [section 60CC(3)(e)]. Up to this stage, Mr Carrigan has been able to maintain his relationship with [X] and [Y] by regularly visiting them in Australia. It is his position however that it will be logistically easier if the children visit him in [Q] rather than vice versa.
As indicated, the current consent orders envisage the children spending up to sixty two days each year with their father, mostly in the school holidays. Included in this regime is the potential for the children to spend time with their father, on the giving of notice, for up to three occasions each year during school terms, from after school on Wednesday until school recommences the following Monday. In my view, this arrangement, which was consensually reached, must be accounted as providing the respondent with substantial and significant time with [X] and [Y].
Given Mr Carapiet’s residence overseas, notwithstanding his personal circumstances as a person with access to either free or highly subsided air travel, it must be accounted an ambitious regime. By necessary implication, it was predicated on the basis that the parties considered it the arrangement most calculated to serve the children’s best interests, particularly in the context of their maintaining a meaningful level of relationship with their father, in the difficult circumstances of him living overseas.
In addition, given the formal notation to the orders of February 2009, it cannot be said that Mr Carrigan has ever resiled from a desire to spend time with the children in his home locale. Although Ms Fredericks has many criticism of how Mr Carrigan has utilised his residence in [Q] for his financial advantage, she cannot say that he has ever kept his plans to live and ultimately spend time with the children there a secret from her.
Up to this stage, Mr Carrigan has elected to take his time with the children at the home of his parents in suburban Adelaide. This is an environment with which the children are familiar and which is likely to be similar to their home environment. Although Ms Fredericks asserts that the paternal grandmother provides must of the nuts and bolts care of the children, in terms of preparing their meals and so on and so forth, it is not her position that Mr Carrigan is incapable of providing for the needs of the children alone or in conjunction with his current wife.
Accordingly, I accept that Mr Carrigan has sufficient parental capacity to care for the children in the event they travel to [Q] to spend time with him. This issue is, of course, not Ms Fredericks’ primary concern. She fears that Mr Carrigan will not honour any obligation to return the children to Australia at the end of any court ordered period of time in [Q].
This issue falls to be considered within the parameters created by the criteria arising from section 60CC(3)(f) and (i) of the Act. Essentially these considerations relate to an assessment of Mr Carrigan’s parental capacity to provide for the children’s emotional and intellectual needs and the attitude he has displayed to the responsibilities incumbent in being a parent.
[X] came to Australia when he was four years of age. [Y] was born in this country. Both children have had their entire education to date in Australia. As such, the children are largely acculturated to the norms and educational standards of mainstream Australia. Their friends live in the same circumstances. In addition, as previously indicated, their main provider of emotional sustenance, up to this point, has been their mother.
The children are living a comfortable and ordered life in suburban Australia. They play sports and go to school like countless other children like them. This is the bedrock of their day to day existence. As such, it would represent a catastrophic blow to their best interests if they are not returned to Australia following any court ordered visit to [Q].
Accordingly, on any view, for the children not to be returned as ordered to Australia, would cause a severe injury to their emotional and educational integrity. For Mr Carrigan to expose the children to such a disruptive outcome would be a failure of parenting of the grossest kind. The central question for the court is whether Mr Carrigan is a person of such narcissism and selfishness that he would be capable of such a course of action. Essentially putting his own desires and aspirations before those of [X] and [Y].
To coin Cronin J’s turn of phrase, such an assessment must be something of a “leap of faith”. However, on the evidence available to me, I do not assess Mr Carrigan as being the sort of person who would grossly disrupt the children’s lives – potentially permanently severing their ties with Australia and their mother – because of an obsessive desire to have his first born male child living with him or for any other related spiteful reason.
Section 60CC(3)(m) authorises the court to consider any other fact or circumstance which is relevant to the children’s circumstances. Under this criterion, I will turn to some of the more specific matters which are germane to an application for children to travel outside of Australia, particularly the specific details of the travel proposed.
In his amended response filed on 11 January 2012, Mr Carrigan has sought that the children spend time with him in [D] between 7 June to 8 July 2012, a period of approximately 30 days. As I understand matters, Mr Carrigan wished to take time with the children prior to the end of the financial year because after the year has ended his entitlement to that year’s free travel for his family lapses.
This is not a period which coincides exactly with the relevant South Australian school holiday. Regrettably there was some delay in the submission of the parties’ closing arguments. These have compounded the delay in the preparation of these lengthy reasons for judgement, which in my view are necessary given the complexity and controversy of the various issues confronting the court.
In all these circumstances, it is not possible to accede to Mr Carrigan’s application. In any event, I would not have been minded to have made orders authorising the children travelling during the school term. In my view, any future travel must be confined to school holidays.
If future periods of travel for the children outside of Australia are confined to school holidays and kept to periods of between 21 and 28 days, I do not consider that the length of such a proposed stay out of Australia can be considered in any way unusual, or of itself, contrary to the children’s best interests, particularly bearing in mind that the existing orders envisage Mr Carrigan spending similar block periods of time with children, albeit in Australia.
I have no reason to doubt the bona fides of Mr Carrigan’s application. Again, as I have already noted, his desire for the children to visit him in [Q] has been an issue on the table between the parties since the Family Court proceedings. In addition, I accept that it will be logistically easier for him if the children travel at least for some of the time to [Q], rather than vice versa. In addition, I can appreciate why he would want the children to see and experience where he lives.
Ms Fredericks has concerns that it may be unsafe for the children to travel to [Q], which being on the Arabian Peninsula, is a country located in a troubled part of the world. The Middle East is an epicentre for all manner of global tensions. In the context of these proceedings, it is necessary for me to make some assessment of the degree of threat to the welfare of [X] and [Y] posed by the proposed travel to [Q].
Individuals assess risks to themselves and their families as part and parcel of their lives. Individuals are prepared to accept some risks and reject others. When parents have separated, in difficult and acrimonious circumstances, as have the parties in the present case, it becomes difficult, if not impossible for them to discuss the degree of risk involved in any particular course of conduct for their children and agree on proportionate responses to the degree of risk involved.
In addition individual parents are likely to have different views about the nature of the risk involved in any proposed course of conduct for their children. Sadly, it is not unknown that the post separation politics in play between parents has a role in determining how any particular risk is perceived by the parties concerned.
So it seems to me to be in this particular case. For obvious reasons the respondent sees the degree of risk involved as a manageable and acceptable one. The applicant sees all manner of dangers in the respondent’s proposals, so far as [Q] is concerned.
In this day and age, no corner of the world is immune from the threat of terrorist attack. As is well known, there have been terrorist attacks in New York, London and Madrid, in the past decade or so – each a major Western centre. In addition, there have been such attacks in many locations within the developing world – Bali and Mumbai spring to mind in this regard.
As such, I think I would be naïve to think that there was no risk of the children coming to some form of harm if they travel internationally. The world can be a dangerous place. However the question for the court must be whether the risk is one which is appreciable. It must be more than one which is theoretically or remotely possible.
[Q] is not a failed nation state. It has a significant expatriate population. I have no reason to think that it does not have appropriate apparatuses to secure the protection of its citizens and visitors, particularly at its airports. Although the Australian Government has advised its citizens to exercise caution in [Q], it has not specifically advised against travel to the country.
Mr Carrigan is an experienced traveller. He is employed by an international [company]. For obvious reasons, he is far better placed than Ms Fredericks to assess the current security situation in [Q], as he lives there. I did not assess him to be an inherently imprudent person. I also accept that he is motivated by the best interest of the children concerned. In these circumstances, I do not consider that he would willingly expose [X] and [Y] to an appreciable risk that they would come to harm. I accept that if he considered it was unsafe for the children to travel, he would defer their travel.
However, the real gravamen of Ms Fredericks’ concerns in this case is that Mr Carrigan’s promise to return the children to Australia at the end of any holiday visit is essentially worthless and he will stop at nothing to secure the complete possession of the children, either in [Q] or Pakistan and, as neither of these countries is a signatory to the Hague Convention both she and the Australian Government will be powerless to secure the return of the children to their place of habitual residence.
Mr Carrigan has said that he has no intention of retaining the children. He points to the fact that he has never actively pursued orders for the children to live with his [Q]. In these circumstances, the court is required to consider the degree to which it can be satisfied that
Mr Carrigan’s promise to return the children to Australia will be honoured. In the absence of treaty obligations between Australia and the countries in question, I concede that this assessment has the potential to be momentous for the children concerned, if it is ultimately shown to have miscarried.
In my assessment, Mr Carrigan has strong and continuing ties with Australia. He is an Australian citizen, as are his parents, who live in Adelaide and have done so for a significant period of time. I accept
Mr Carrigan’s evidence that he personally does not see a future for himself in Pakistan, the country in which he was born. I accept his designation of himself as a secular person with a Western outlook. In these circumstances, on balance, I think it against the balance of probabilities that Mr Carrigan would decamp with the children to Pakistan.
If however, my assessment is wrong, such a decision would render Mr Carrigan a pariah in Australia. He would be unable to return to this country without being subject to arrest. He would forfeit any opportunity to advance his career in this country for a very long time indeed. More importantly, if his parents remained living in this country, he would not be able to see them face to face.
One feature that emerged strongly from the evidence of the respondent and his father is that there is a strong bond of love and respect between Mr Carrigan and his parents. Mr and Mrs J effectively funded the long running proceedings between the parties in the Family Court. There is also a strong bond between them and [X] and [Y]. In these circumstances, I am satisfied that the prospect of his immediate relationship with his parents being severed would represent a strong disincentive for Mr Carrigan to disobey any order requiring the children to be returned to Australia.
In this regard, it is not beyond the bounds of possibility that Mr and Mrs J are in cahoots with their son over a long germinated plan to relocate en famille to either Pakistan or [Q] and that as a consequence of this they have no concern about severing their ties with Australia or sacrificing their proprietary interests in this country.
In terms of [Q] first, I accept that Mr and Mrs J would not have an entitlement of residence, as of right, in that country. They would have to seek some form of visa to live there. As such, it seems unlikely that a relocation to [Q] would be a feasible plan for them.
Both however are likely to be able to reside in Pakistan, given that they were each born in that country. However, in this regard, one aspect of Mr J’s evidence to the court struck me as particularly heartfelt and genuine. It was his love for Australia. In my assessment Mr and Mrs J are ensconced in Australia and would not willingly leave it. As with their son, I accept that Mr and Mrs J see their future in a western country such as Australia.
As I have already observed [X] and [Y] are habituated to life in Australia. They are not likely to accept compliantly the prospect of a future life in Pakistan. From their perspective (and indeed from Mr Carrigan’s) it is clear that their future is in Australia. This is another significant tie which is likely to lead to Mr Carrigan honouring a promise to return the children to Australia.
Frankly and to his credit, Mr Carrigan said that he would willingly have the children “24/7” if he could. However, in my assessment, his love for [X] and [Y] is not sufficient motivation for him to disregard an order of the court to return the children to Australia. The next issue is whether the level of conflict between Mr Carrigan and Ms Fredericks is so intense that Mr Carrigan is likely to retain the children to spite
Ms Fredericks.
Undoubtedly there is no love lost between the parties concerned.
I think it unlikely that the animus Mr Carrigan previously felt for
Ms Fredericks has completely resolved. However, it is now around six years since the parties separated. It is a significant period of time. In this regard, it is important to note that some of the more extreme allegations of misconduct the parties have made against one another are now only of historical relevance.
When I consider what Mr Carrigan has to lose in terms of his connection with Australia and what he has to gain from wreaking his vengeance on Ms Fredericks, at the price of the children’s future, it seems to me to be unlikely that this latter course of action is one on which he would embark. In my assessment, Mr Carrigan is not an irrational person. He may dislike Ms Fredericks but his dislike does not appear to be pathological or one which would overwhelm his motivation to devote himself to securing the children’s best interests.
As I have found, Mr Carrigan has not been completely candid about his financial circumstances. In addition, it did not help my assessment of his bona fides that he ceased paying child support when he did, after having promised the Family Court he would abide by his irrevocable authority, directed to his employer and his bank, to pay child support as assessed. It seems to me to be likely that Mr Carrigan felt a degree of resentment about the level of child support that was assessed against him, in his absence, prior to the hearing before Burr J.[30]
[30] See Carrigan & Fredericks [2011] FMCAfam 544 at paragraphs 34 -38
However, to his credit, he has resumed paying child support voluntarily. Accordingly, it cannot be said that he completely abrogated his responsibilities for the children. In addition, he has visited the children in Australia regularly. In these circumstances, I do not think that I can automatically assume that Mr Carrigan’s word is of no value.
To return to the leap of faith which this case represents. I am not infallible. I cannot see the future or look into either the hearts or minds of the parties concerned. Rather, what I must do is approach the evidence available to me in a logical and rational manner and make some objective assessment of the risk incumbent in permitting the children’s overseas travel. There is of course the possibility that however carefully I undertake this process, I will be mistaken in my assessment of Mr Carrigan. This risk is heightened in the absence of a Hague Convention relationship between Australia and both [Q] and Pakistan.
If I am mistaken in my assessment of Mr Carrigan, I accept that it will be nigh on impossible for Ms Fredericks to secure the return of [X] and [Y] to Australia from either [Q] or Pakistan through legitimate legal channels in either such country. These considerations render it necessary for the court to consider recourse to some form of financial security to act as a disincentive to both Mr Carrigan and other members of his family from disobeying the court’s order in these high stakes proceedings.
Mr and Mrs J cannot be regarded as wealthy individuals. Their major asset is their home. Realistically, given his age, Mr J cannot expect to remain in the work force for a lengthy period of time. Accordingly, for each of them, a potential encumbrance on the property, which may ultimately result in the loss of the property to them, would be a significant detriment as far as they are concerned. It would likely render their years of retirement significantly more arduous.
However, the fact remains, that Mr and Mrs J have demonstrated a significant capacity to sustain financial punishment on behalf of their son. They lent him a large sum of money to pay his legal fees, of which a sum approaching $80,000.00 remains outstanding. To play the devil’s advocate, it could be said that this history demonstrates that they are oblivious to the imposition of any security against their proprietorial interests if it secures their son’s ultimate aims.
Mr J is obviously partisan in these proceedings and has no good to say about his former daughter-in-law. But I do not consider him irrational. As such, I think it unlikely that he would be party to a conspiracy with his son to secret the children out of Australia permanently and in order to do so he would be willing to act to his and his wife’s financial detriment. As I say, one thing about his evidence struck me as being undoubtedly true – that was his passionate love for Australia and its bounties. I do not think he would want his grandchildren to grow up in any other country. Nor do I think that Mr Carrigan would willingly condemn his parents to a life of penury in their old age, given the assistance they have rendered him up to this stage.
The fact remains that I cannot know these things for certain. Indeed some might consider it irrational for a person approaching retirement and of modest means to lend a significant sum of money to a relative for use in family law proceedings without any form of security. In all these circumstances, any form of security imposed must be of sufficient magnitude to deter Mr Carrigan from disregarding any obligations imposed on him pursuant to court order.
I consider $30,000.00 to be inadequate in this regard. It is possible that Mr and Mrs J would be able to borrow such a sum, notwithstanding their respective ages, on an interest only basis. The interest due on such a sum being relatively modest and as such not of itself a significant disincentive to Mr Carrigan. A prospective lender, for all I know, may be prepared to defer repayment of the principal sum lent for a lengthy period of time. In addition, such a sum represents a modest component of their equity in their family home and is likely to be readily accessible to Mr and Mrs J through mechanisms such as a reverse mortgage.
I believe the amount of any security must be significantly more than this and be of such a magnitude that in securing its payment, Mr and Mrs J would be subject to a significant financial detriment, including the possible forfeiture of their home. I reach this conclusion given the capacity they have displayed in the past to shoulder financial vicissitudes on behalf of their son.
In these circumstances, I have come to the conclusion that an appropriate amount of security is $150,000.00. It seems to me to be unlikely that Mr and Mrs J would be able to raise such a sum without losing their home. If a mortgage was granted in favour of
Ms Fredericks and the children were withheld from her, I doubt that she would hesitate to call in the security. Such a sum would also significantly provision her to seek out the children and agitate for their return. Above all it is a sum of such magnitude that it is likely to deter Mr Carrigan from retaining the children.
In granting such a security, there is no immediate prejudice to Mr and Mrs J. The prejudice arises only if [X] and [Y] remain overseas. Presumably they are the persons best placed to assess the credibility of their son and determine whether the risk involved is worth taking. Given Mr J’s evidence regarding his affection for Australia, I consider it unlikely that he and his wife would willingly abandon life in Australia and their financial security in this country for an uncertain life in another part of the world with Mr Carrigan, [X] and [Y].
Mr Carrigan’s future plans for the children to visit him in [Q] are not well delineated. It is too late for the children to travel in the mid year 2012 school holiday. In addition, in my view, it is appropriate that the children spend some holiday time in Adelaide with their mother. In all these circumstances, I propose that the children spend time with their father in [Q] for up to 21 days each year, which is to be confined to the in end of year school holiday.
Under the current order of Burr J, the respondent is entitled to spend time with the children for 21 days during the end of year school holiday; for 9 days and 10 days respectively in the end of first term and end of third term school holidays; and for 7 days in the mid year (July) school holiday. This totals 47 days.
In addition, the respondent may spend time with the children, during school terms, for up to three occasions each year, from after school on Wednesday until school recommences the following Monday, provided the children attend their normal school activities during these periods. The intent of this aspect of the orders, no doubt, was to ensure that the children had the opportunity to interact with their father in the context of an ordinary school week. These further periods amount to a further amount of time of approximately 15 days.
In my view, it is clear that these later periods can only take place in Adelaide, given the intent of that aspect of the orders. In addition, given the children’s strong relationship with their mother and the day to day reality of their lives, it seems to me to be appropriate that the children have the opportunity to spend an extended holiday with their mother each year, either in Australia but also possibly in the United States, given their familial connections in that country. These holidays should be confined to normal school holiday periods.
Of the remaining 47 days available to the father to spend time with the children, it seems to me to be appropriate that the existing orders be modified to enable him to take approaching half of this time with the children in [Q]. This is the rationale for my decision to permit the children to travel to [Q] for one holiday per year for up to 21 days in duration.
Realistically, given the configuration of the school year, such a period is available only during the end of year school holiday. In my view, it would be onerous to expect the children to travel to [Q] in any of the short school holiday periods for a maximum period of ten days. Given Mr Carapiet’s access to subsidised international travel for himself, it does not seem unreasonable, given the children’s connections in Australia, to expect him to continue to travel to this country to spend time with the children in these other periods.
In my view, given the ages of the children concerned, particularly [Y], and the controversy surrounding their travel to [Q], one trip per year is the appropriate level of travel for the children to spend time with their father in his home environment. It also seems to me that one trip per year is the level of travel for the children, which Ms Fredericks will be most able to emotionally sustain.
In this regard, I note that Ms Fredericks has provided no specific psychological or medical evidence in respect of the emotional impact on her of the children travelling overseas. In addition, as I have previously indicated, in my assessment, she is a person of ordinary susceptibilities, who is not hyper sensitive.
However, given her suspicion of the respondent and her belief that he is essentially capable of anything, I think I would be naïve to think that she would not be anxious at the prospect of the children travelling overseas. This is a further reason to confine the children’s travel to [Q] to one trip per year. One trip is also easier to manage from a logistical point of view. It is also not beyond the bounds of possibility that
Ms Fredericks herself will want to take the children overseas at some time in the future.
Mr Carrigan will be responsible for the payment of the necessary travel expenses, including the provision of an adult relative to accompany the children to and from [Q]. The accompanying relative is to be selected from a pool comprising the respondent’s wife; his two sisters; and his parents.
Given the poor relationship between the parties, I will direct that
Mr Carrigan give Ms Fredericks at least 90 days written notice of his intention to spend holiday time with the children in [Q]. It will also be mandated that he provide her with copies of the children’s necessary airline tickets (including proof of a purchased return fare) and a detailed itinerary, including electronic contact details, 60 days prior to the date of proposed departure from Australia.
In order to facilitate these orders, I will direct that within 28 days of the date of these orders Ms Fredericks provide Mr Carrigan with photocopies of the children’s current passports and any up dated ones with 28 days of receipt of same. As a necessary corollary of such an order, it will be necessary to direct that Ms Fredericks takes all necessary steps to secure a timely renewal of the children’s passports.
Finally, at least 45 days prior to the date of the children’s proposed departure from Australia, it will be ordered that Mr and Mrs J provide Ms Fredericks with a memorandum of mortgage in registrable form in an amount of $150,000.00 in respect of their home located at
Property G, in the state of South Australia. Ms Fredericks will be required to return this memorandum to Mr and Mrs J seven days after [X] and [Y] have returned to her care in Australia.
The level of mistrust between the parties concerned have rendered this a difficult case to determine. In addition, their personal circumstances cannot be regarded as run of the mill. In these circumstances, I have endeavoured, as best I can, to remain objective and focussed on the best interests of the children concerned, notwithstanding the high stakes which the matter raises.
I am satisfied that the parenting orders which I propose are, on balance, in the best interests of [X] and [Y]. I consider that the children will benefit from having some opportunity to spend time with their father in [Q], as he wishes. I also consider that the financial orders, which I propose, are proper ones.
The applicant seeks an order that the respondent pay costs arising from these proceedings in a sum of around $5,500.00. She has represented herself throughout these proceedings at every court mention and throughout the hearing. She has said however that she has sought some legal assistance to help her preparations.
In my view, it is neither proper nor just for the court to depart from the general rule in family law proceedings that each party bear his or her own costs [section 117(1)]. Neither party has exhibited any significant capacity to compromise with the other. It is however of some importance, in my view, that Mr Carrigan agreed to the children travelling to the United States in 2011 and did voluntarily agree to pay some maintenance for them from July 2011 onwards.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and ninety-nine (399) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 12 July 2012
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