GALLEGO & MACKWETH

[2014] FamCA 1217

FAMILY COURT OF AUSTRALIA

GALLEGO & MACKWETH [2014] FamCA 1217

FAMILY LAW – CHILDREN – Interim parenting – Where the mother seeks orders permitting her to take her two children aged eight and five years overseas for a holiday – Where the father raises concerns that the mother may not return the children – Where the Philippines is not a party to the Hague Convention– Where both parties have made allegations of family violence – Where the mother offers to provide a bond of $20,000 which may be released to the father if the children are not returned  – Where it is found that there is a risk that the children may not be returned to Australia – Where the mother’s application is dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gallego

RESPONDENT: Mr Mackweth

INDEPENDENT CHILDREN’S LAWYER: Ms Karragiannis

FILE NUMBER: SYC 3015 of 2012

DATE DELIVERED: 21 November 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 21 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

SOLICITOR FOR THE RESPONDENT: Taylor & Scott Lawyers

SOLICITOR FOR THE ICL: Legal Aid NSW

Orders

1. That the mother’s application in a case filed 11 September 2014 is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallego & Mackweth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3015 of 2012

Ms Gallego

Applicant

And

Mr Mackweth

Respondent

And

INDEPENDENT CHILDRENS LAWYER

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. By an application in a case filed on 11 September 2014, the applicant mother seeks orders permitting her to take her two children aged eight and five years overseas for a holiday from 23 December 2014 to 27 January 2015.  The mother proposes that they will attend the 75^th anniversary of her mother’s grandparents to which they have been invited and to celebrate Christmas with her relatives in the Philippines.  She also proposed to take the children to other destinations in Asia.  The children’s father opposes the trip saying that in the circumstance of this case, there is an unacceptable risk that the children would not be returned to Australia.

3. The mother was born in the Philippines in 1968 and moved to Australia in 1991.  She’s now an Australian citizen, but is entitled to dual citizenship in the Philippines.  The parties met in 2005, separated in 2011 and were divorced in 2014.  There had been allegations of violence made by each party against the other.  On 18 July 2012, interim orders were made in the Federal Circuit Court whereby the children were to live with the mother and spend time with the father on Tuesdays and Wednesday afternoons and alternate Fridays and Saturdays subject to the paternal grandmother being present at all time.

4. The mother alleges that on 4 April 2014, the father entered her house and over a number of hours assaulted her in front of the children who she says were and remain terrified by that event.  The father denies that the event unfolded as described by the mother, and asserts that it was he who was assaulted.  Subsequently to 4 April 2014, the mother did not make the children available to spend time with the father, and on the mother’s application, on 12 August 2014, Rees J suspended the existing parenting orders and made an interim order that the children spend no time with their father.

5. On 28 August 2014, the father filed an application to reinstate the earlier interim orders and a contravention application.  Subsequently, the father was charged with a number of criminal offences arising out of the events of 4 April 2014.  On 11 September 2014, I determined that the application should be heard after the conclusion of the criminal proceedings.  The present application is to be determined by considering what is in the children’s best interests.  The issue before the Court is whether or not the children are at risk of not being returned to Australia.  They have lived in Australia all their lives.  It need hardly be said that the unilateral removal from the life they have known and retention in the Philippines would not be in their best interests.  The purpose of the trip seems unexceptional.  There is a significant family occasion to attend and the opportunity to meet and be involved in the activities of the children’s broader family.  There is also the opportunity for a fun holiday for the children.

6. The mother has lived in Australia for a long time and is an Australian citizen.  She has been employed by the Commonwealth Government since 4 July 2002 and is a senior scientist with the Department of Health.  She owns her own home in Australia subject to a mortgage.  The evidence does not disclose the value of her equity in that property.  She also owns a car and other chattels.  The children are enrolled in school for the next year.  The mother says that she is required to remain in Australia for the purpose of giving evidence in the criminal proceedings and to prosecute the property and parenting proceedings in this Court. 

7. These factors taken on their own would, as counsel for the father accepted, indicate that the risk of the children not being returned to Australia was low.  He then however, pointed to a number of other matters which he submitted established that there was an unacceptable risk that the children would not be returned.

8. The mother clearly has family connections in the Philippines.  She did not deny that her immediate family owns over 1000 acres of fertile land used for plantations, a farm, units in Manila, four houses in regional Philippines and retail franchises.  It is true, as the mother submitted, that I do not know the wealth of her relatives, but clearly, they are not poor, and it was open to her to have given more evidence as to their financial position as such information as is available to her is within her knowledge and not the father’s.  The mother, although not presently a citizen of the Philippines, is entitled to become one.  The father asserts and the mother denies that on a number of occasions the mother has referred to the children living in the Philippines and her taking them there.  Given that dispute on an interim hearing, little can be made of that evidence.

9. On 4 March 2012, the mother sent an email to the father saying in part:

   I love these kids more than you and [Ms W] ever would or could, and I will do everything to protect my kids from her for now.  I will stop at nothing, and if it means confronting her even on her death bed, I promise you I will.

   (Affidavit of Mr Mackweth sworn 26 August 2014 at Annexure ‘H’)

10. I do not regard that email as a present threat of abduction.  It is rather more a personal attack of what the mother regards as the suitability of the father’s new partner.  It does seem that the mother has also seen to consult in messages to the father’s new partner.  Again, I do not see how that establishes a risk of abduction.  The mother asserts that she has a deep-seeded fear of the father, and that the children have a similar fear.  If the events of 4 April are as the mother described, one can well understand that fear.  The father submits that this fear and the desire to protect the children from him is a motive for the mother not returning the children.  I agree that there is force in that submission.

11. Although the mother might regard her views as being correct, a Court might alternately not agree.  Thus, flight would protect her and the children from the father.  I place less weight on the father’s submission that the mother might not return the children because she is fearful that she would be found to have made false complaints against the father which could result in the father spending extended time with the children.  This finding, the father submits, would be consistent with earlier false allegations that have been made.  The earlier false allegations that have been made by the mother have not yet been determined by a Court, and I cannot do so on this application, and whilst the matter raised by the father is a possibility, it remains just a possibility.

12. Finally, as to motive, the father called in aid the evidence of Mr X.  Mr X is obviously an acquaintance of the father.  He says that he was familiar with the children of the relationship because they would come into his shop on occasions with their paternal grandmother and the father.  He says that on one occasion, an Asian woman brought the children into the shop and said the following things:

    The father is no good.  He needs Court supervision, and soon, he is going to be in jail.  Do not trust him.  He is evil.  We are separated.  Their father is no good.  He is an evil person – him and his Chinese girlfriend.  I have to take the children to the Philippines if I am going to protect them from him.  That devil father of theirs has cost me all my money.  I’m not going to let these kids see him again.  He buys them what they want and makes me look like shit.  I’m taking these kids to the Philippines, and they will grow up there like kings.  In the Philippines, I have maids, farms, and my family owns a … farm near the China Sea.

    (Affidavit of Mr X filed 26 September 2014 at [15]- [17])

13. Counsel for the mother criticised this affidavit on the grounds that it was prepared by the deponent as opposed to a lawyer, sworn or affirmed in front of a solicitor who had no relation to the litigation, and the affidavit does not identify whether it was sworn or affirmed.  All that is true, but no inferences can be drawn from those matters.  There are some questions to be asked, however, about Mr X’s affidavit.  As I have said, he is clearly an acquaintance of the father’s, and he says himself that he informed the father of the above conversations.  The father does not refer to this in any of his evidence.  The mother denies ever having been in the shopping centre where the conversation is said to have taken place since 2012.  On her evidence, therefore, Mr X’s evidence is a complete fabrication.

14. The father asserts that the language of the mother deposed by Mr X is similar to that used by the mother.  That, even if correct, is as consistent with it being a fabrication undertaken with regards to the mother’s words used in other circumstances as it is with being a genuine affidavit.  As to the likelihood of the mother saying these things to a complete stranger to her is a matter for a final hearing.  I cannot determine on this application whether Mr X’s evidence is a fabrication or not.  That is a matter which may call to be determined at a later date.  On an interim hearing, the Court cannot and should not determine such matters.  As it presently stands, it is evidence which, if accepted at final hearing, indicates that the mother has said she intends to remove the children to the Philippines.

15. Finally, the father asserts that it is not safe for the children to travel to the Philippines.  First, the Australian Government travel advisory suggests exercising a high degree of caution when travelling to the Philippines.  As to parts of Mindanao, the travel advisory is “reconsider your need to travel” and “do not travel,” but it is not the intention of the mother to travel to that island.  Secondly, the father points to the high level of crime in the Philippines.  He asserts, but the mother denies, that her family in the Philippines travels with an armed guard.  I cannot resolve that dispute.  Thirdly, the father raises the sanitary conditions in the area where the mother proposes to travel.  As the mother’s family have obviously lived there for some time, I do not see how that raises any difficulty.  I’m not satisfied that any of the safety concerns are of great weight in determining whether or not the mother should travel with the children to stay with her relatives.

16. The father points out that the mother has not provided an itinerary.  This is so.  The fact that the mother is prepared to provide a detailed itinerary to the Independent Children’s Lawyer who has agreed to hold it and only release it if there is a problem, alleviates the father’s concern to a degree. However the itinerary is not available to be taken into account in this determination.  I raised with the mother the issue of providing a bond to be forfeited if she did not return with the children.  Her response was that she would consent to an order for $20 000 to be released immediately from the controlled moneys account to the father if there was no return.  This, it was said, could be used by him to finance efforts to recover the children.  Given that the Philippines is not a signatory to the Hague Convention on the abduction for children, I do not see how this would assist the father to recover the children.  I consider that given that the Philippines is not a signatory to that convention, if the children are not returned, there is a very real risk that they would never be returned.

17. Having regard to the assets disclosed by the mother, the sum of $20 000 is a sum that might readily be forfeited if it were the aim of the mother permanently to remove the children from Australia.  It is insufficient a sum to indicate that it is clearly and obviously the intention of the mother to return to Australia.  Finally, the father asserts that as the mother has been seeking to take the children to the Philippines for some time, the anniversary celebrations are just a convenient excuse.  That may be so, but a desire to take the children to the Philippines for a number of years does not provide evidence of a risk that they will not be returned.  Although the mother has long established links to Australia, she also has substantial family in the Philippines.

18. She has as yet an undetermined interest in the controlled money account and an unknown equity at her home.  She has a well established job.  On the other hand, her family in the Philippines has extensive assets, again, albeit of an unknown value.  Whether the assets of the mother in Australia have significant or insignificant value compared to the assets of her family in the Philippines is unknown.  The mother’s feelings towards the father are vehement as is her desire to protect the children from him.  That is a motive for not returning the children to Australia.  I’m very concerned about Mr X’s evidence.  If accurate, there is a very real risk that the children will not be returned.

19. As I have said, it is not in the best interests of the children to be taken to the Philippines and not returned.  Taking into account the possible motive for not returning the children’s evidence, Mr X’s evidence and the failure to offer what I regard as an appropriate bond to be forfeited to secure the return of the children, I am satisfied there is unacceptable risk that the children will not be returned. 

20. I am not satisfied that the mother’s links to Australia will remove that risk.  As I have said, the proposal to release the sum of $20 000 in the event of a non-return is an extremely inadequate way of dealing with these concerns.  I am conscious that this will mean the children will not attend a significant family event and enjoyable holiday.  Both of which would be of value to them.  This, however, is an interim order which will not prevent consideration of other travel in the future.  In any event, the benefit to the children does not outweigh the risk to which I have just referred.  The application in the case filed on 11 September 2014 is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 November 2014.

Associate:

Date:  23 March 2015