Gant and Parrott

[2007] FamCA 1225

FAMILY COURT OF AUSTRALIA

GANT & PARROTT [2007] FamCA 1225

FAMILY LAW –CHILDREN –  Relocation

APPLICANT: Ms Gant

RESPONDENT: Mr Parrott

FILE NUMBER: ADC 422 of 2007

DATE DELIVERED: 28 September 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Bell J

HEARING DATE: 26 & September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C.A. Jeffries

SOLICITOR FOR THE APPLICANT: Women's Legal Service (SA) Inc

COUNSEL FOR THE RESPONDENT: Mr M.G. Pickhaver

SOLICITOR FOR THE RESPONDENT: Matthew Mitchell

Orders

1. The child … (“the child”) born … January 2004 live with the father.

2. The mother spend time with the child at all times as may be agreed between the parties.

3. The father be at liberty to remove the child from the jurisdiction of the Family Court of Australia.

4. The Court requests that the Australia Federal Police remove the child … born … January 2004 from the Airport Watch List at all points of international arrivals and departures in Australia.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Gant & Parrott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 422 of 2007

MS GANT

Applicant

And

MR PARROTT

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of the mother for orders relating to a son of her marriage to the respondent, the father, the boy being born in January 2004.

2. The parties formed a relationship and married in June 2002.  They are Peruvians by birth and by nationality, and such marriage and birth of the child took place in Peru.

3. Up until the year 2005 the parties lived in Peru and the child was looked after by the father, the mother and the extended family, particularly on the father's side. 

4. The parties, for a period, lived in the paternal grandmother's residence and it appears that she must be a woman of some substance since she has in effect supported the father, the mother, the child and, I understand, a nanny, a maid and also the respondent's brother.  Her husband was a member of the Peruvian military and she is in receipt of a pension, which I think I can infer is particularly generous and enables her to live in a very good style or to a very good standard in Peru, there being evidence before me that the living costs in Peru are much less than in Australia.

5. The wife has a professional qualification and it was her intention, consensually with the respondent, to journey to Australia in order to extend her qualifications and thus make her more attractive on the job market. 

6. She made application to a bank in Peru for the purposes of a student loan and I find that such student loan was taken out in her name alone, with the surety being her father.  She indicates in the evidence before me that her father is the owner of two houses in Peru and these were used as surety for the loan.  The loan is considerable; something like $60,000-odd Australian or some $US40,000-odd.  She is required, at the end of this month, to commence repaying 12 to 13 hundred dollars per month; that is Australian once again.

7. She came to Australia, as I said, consensually.  She left the child with the father and I note that she had no worries about the child being adequately and properly looked after by the father and the extended family, not only on the father's side but on the mother's side as well.  The child, as I have said, is Peruvian and he speaks Spanish.

8. The parties have agreed that the mother would come out here, establish herself in seeking a masters degree.  She did so towards the end of 2005, as I have said, leaving the child with the father.  It was agreed between the parties that after she was established the father and the child would come to Australia with a view to setting themselves up as a family and having a new life in Australia, which they hoped would give them more advantage.

9. I emphasise this agreement because it was obviously the agreement of the parties that they were going to act as a family, that is, a mother and father and child, notwithstanding Mr Bowler's surprise that I would define "family" as a mother and father and child living together.  I am satisfied that in my view a family consists of a husband and wife, or mother and father, with a child.  I refer in fact to the often ill‑used adage of "nuclear family", which does refer to mother, father and child.  They were to come out here and resume their life as a family, and the mother was to continue completing her postgraduate degree.

10. The mother formed a relationship with another professional, a Mr S, and he was, it appears, connected to the mother through her studies.  This commenced early in 2007 and subsequently developed into a full‑blown relationship where the parties are now living together.  The mother is pregnant to Mr S; she expects to be delivered of the child in January of next year.  She has indicated that she wishes a divorce from the respondent father and to intermarry with Mr S.  He has evinced a similar view to marriage.

11. The mother did not inform the father of this relationship and in fact in two letters, which are set out in exhibit 3, she evinces a great degree of guilt in relation to the relationship which she had entered into with Mr S.  This of course was subsequent to the father becoming aware of it.  I think the letters were dated 21 January 2007.  The father came out to Australia in August of 2006.

12. The father became, as I find on the evidence, somewhat distressed at the breakdown of the relationship between himself and the mother.  There were futile attempts at reconciliation.  The marriage had obviously broken down in the mind of the father and the father decided the only thing he wanted to do was, seeing the prime core of his reason for coming to Australia - that is, the family - was destroyed, that he had no longer any ties to Australia and wanted to return to his home of origin, Peru.

13. The mother was residing in Australia under a student visa and he, the father, came to Australia as part of a student's dependant visa.  More of that anon.  I must confess that I found the evidence of Mr G in relation to the machinations of our immigration policies quite fascinating but irritating and I also found it quite confusing.  More of that anon because this is the linchpin of the case.  I think it has almost been conceded by Bowler of counsel for the mother that it is the linchpin; that is, whether the father can remain in Australia or will have to leave and go back to Peru.

14. The father attempted to find the passport of the child in an endeavour to return to Peru.  He says he told the mother of his intention to return; she denies this.  He went to Sydney with a view to seeking the issue of a fresh passport from the Peruvian consulate.  The consulate got in contact with the mother here in Adelaide and as a direct result of that the mother instituted proceedings in this court for orders in relation to with whom the child lives.  I think a recovery order and an injunction restraining the father from removing the child from the jurisdiction - a PACE alert - was also sought.

15. That order was made on 30 January, and orders were made insofar as living with the respective parents are concerned and it is on a weekabout basis.  That has continued up until today.

16. The father has sought - and I make it quite clear I do not think he has illegally sought - work and has found work with an hotel.  He endeavoured to prove this by tendering to Mr G a letter, which regrettably was mutilated in that it appears as though a second page, which would have been required, did not in fact come forward.  It is quite clear that he has complied with the immigration requirements. 

17. I refer to his application for a variation of the visa because, the marriage no longer subsisting, he cannot rely upon the student dependant visa.  He sought what I think was a tourist visa, according to Mr G, and that such tourist visa is being taken under consideration.  No decision has been made on whether in fact he can stay and if he could stay for what length of time.  The maximum time for a tourist visa is 12 months.

18. Mr G, as I said, was obviously very, very au fait with the machinations and the deliberations of the Immigration Department and his evidence was quite illuminating but, as I said, confusing.

19. It appears as though the mother is still here on a student's visa but she has made application for a different visa.  That is under consideration and has not been decided because, as a result of her pregnancy, she is unable to carry out the mandatory medical test; inter alia an x-ray.  I understand the Immigration Department has decided to forgo any decision until such time as she is capable of having the x-ray and complying with those requirements.

20. The father's original visa, if I can put it that way - a student's dependent visa - expired on 14 September.  Prima facie I thought he was an illegal at that time, but I have touched upon the fact that he made, the day before, application for another visa to enable him to stay and that was a tourist visa.  He is not an illegal but, and this is the crunch, could become so.

21. The problem here is to decide whether or not the father can remain in Australia for a period.  It has been suggested that the mother, who is now taking up a second masters program, will have completed her studies in relation to that by the end of 2008 and/or, at the latest, early 2009.  A proposition that was put by the mother to the father and to the court was that the father remain in Australia until the end of 2008 or early 2009, that the mother then return to Peru and the child be shared during that period in accordance with the orders of the court, and that the matter then go back to Peru and, I expect, try and be resolved according to Peruvian law, which I have no proper evidence as to what it is.  This was rejected by the father.

22. On the face of it that might be a reasonably attractive proposition but the proposition now is going to be either destroyed or come to fruition by one thing, and that is what I have already foreshadowed.  That is, whether he is going to be able to stay in Australia after these proceedings.  By the way, the child has also been covered, if I may put it that way, by both the father's application for the tourist visa as well as the mother's pending application for another student's visa - I think that is what it is - to enable her to complete her studies.

23. Mr G indicated that the father - if I may use the vernacular - is in a lot of strife insofar as his visas are concerned.  He has run out of them.  If in fact the tourist visa which he is seeking is granted, it will be granted for a period of between one month and 12 months, as I said.  At the expiration of that time he cannot, as I hear the evidence of Mr G - I do not have the benefit of a transcript - make application for another visa whilst he is in Australia.  He must leave Australia and then make application for another visa to return. 

24. I am quite satisfied on the evidence before me that the father has no chance of remaining in Australia, at present, until the end of 2008 or early 2009.  There is one avenue left open and that was examined quite thoroughly by Bowler of counsel for the applicant mother and that was regulation 30.1(1), which I think was "circumstances beyond his control" which he had no chance of proving. 

25. It was put to Mr G that the fact that the father might be precluded from enjoying time with his child as a result of the decision of the Immigration Department not to extend or to grant him some form of visa would be sufficient.  Mr G indicated that in his experience - and it seemed to me to be vast; I think he said he had at least two or three cases in which he attempted to put that up to convince the authorities that this was a compelling reason and failed - the last ditch stand would, as I understand it, be "the discretion of the minister".  I doubt very much whether any application to him would meet much attraction.  I have little or no evidence to say one way or the other.

26. So we have the fact that the father would have to leave Australia, perhaps sooner rather than later; no later than 12 months at the absolute maximum and probably around about one to three.  Now, what does that mean?  It means if the child stays with his mother that he will be residing with his mother and her new partner, that he will be waiting for the birth - and one would expect that it would be something he might look forward to - of their new child which she is hoping to be delivered of in, as I say, January.  He is in an environment - and now we come once again to another matter - which is foreign to him.

27. The following facts are incontrovertible.  He was born in Peru.  He speaks Spanish.  He has lived in Peru up until he was about two years and 11 months.  He was brought to Australia by a loving father to see a loving mother, as a family.  That no longer exists.  He has extensive family in Peru on both sides.  He has a close relationship, notwithstanding the skilful cross‑examination of Bowler, with his nanny, whose document - it appears to be a document of hers - is exhibited to one of the husband's affidavits, and is still having contact with her by way of the Internet and web cam.  He is excited about the idea of returning to Peru; this evidence came from Mr F, and I will have to get into Mr F’s evidence. 

28. Mr F has set out that he considers in cases such as this - and mindful as I am of Bale v Jenkins, delivered on 10 August 2007 - I must consider any of the propositions put up.  He considers that the best thing for the child would be both parents returning to Peru.  It is quite clear that that would be the best for the child.  They would both be back in their own country.  They would both be back in a country which is well known to the child, notwithstanding his tender years.  They would both be back with the child, to experience his extended family.  It looks like the nanny would be back on the scene because I think she has been asked to make herself available for as long as possible.  He would be back in the arms of his grandmother, paternal as well as maternal, his uncle, and he would be in a country in which Spanish is spoken.  He would be back in the similar pre-school or pre-kindy or whatever it may have been, which Mr F has given evidence of, with his friends and a curriculum which he is aware would continue.

29. What do we have him here doing?  He is struggling.  He is finding English perhaps somewhat difficult; he is only a baby, let us face it.  He is obviously fluent in Spanish but he is having difficulty with English.  He does speak it, according to Mr F who did see him some considerable number of weeks ago.  He is very difficult to understand, in English, and as a result thereof most of the conversation was via his father.  His father, notwithstanding the use of an interpreter here today, according to Mr F, is able to converse, albeit with some difficulty, in English.

30. Mr F’s evidence was of particular importance as far as I was concerned.  He touched upon those matters to which I have already referred, and he is concerned that the child’s emotional stability may be affected; not that it is affected.  Once again in the intensive cross-examination by Bowler, acting in the interests of his client, he endeavoured to diminish the evidence of Mr F by taking a particular aspect of the child's welfare and saying, "Was there evidence of this?  Was there evidence of that?"  Mr F generally conceded that there was no direct evidence that the child's emotional wellbeing and/or health is being affected at this stage but it is quite clear on the evidence as I see it - and he did not resile from this - that his clinical opinion is that the child may be affected by his being kept away from his Peruvian/Spanish heritage.

31. I have already referred to Bale v Jenkins and I particularly refer to the Internet printout at page 20 thereof under the subheading Relevant Law and commencing at paragraph 61.  In particular I refer to paragraph 62 and incorporate the requirements directed to trial judge's courts, and I take into consideration those matters.

32. Naturally, of course, the main requirement is the best interests of the child.  As far as I am concerned everything is subservient to that.  However, I do receive directions from the Court of Appeal and they say in particular that this is not an inquiry which can be parcelled out by saying, "We'll consider this matter, then we'll consider that."  It is a full inquiry and, as they say, "The court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child." 

33. As a result of that I am considering residence but I am able to say that the child, I would feel, would be advantaged by being in either parent's household.  They are both good parents.  They both love their child dearly and they will both do as much as they possibly can to advance his welfare.

34. Mr S is at this stage a little bit of an unknown figure.  He has only been on the scene, insofar as the father is concerned and the child is concerned, for some 12 months at the most.  I do not criticise Mr S in any way at all.  I am sure that he will do his best.  Then again, he has his own child coming in January.

35. I do feel, notwithstanding the directions of the Court of Appeal, that the matter rises or falls in this case on the relocation question.  As I have said, both parents are good.  If they were in Peru, equal parenting.  If the father could stay and wanted to stay - I must say in passing, he does not want to stay.  He indicates that his job prospects are better in Peru and he has referred me to a letter where a job prospect is open for him, notwithstanding the concerns about some form of bachelor degree certificate.  He has Spanish.  He is more confident in Peru than he is here and feels as though the welfare not only of himself but in particular of his son would be better advanced by being in Peru. 

36. So we get down to that.  If they were both here, I think that this is a case where shared parenting would work.  In Peru I think the same thing:  shared parenting would work.  The mother has indicated to me, through her counsel, that in fact she would return to Peru either at the end of 2008 or 2009.  I know, as I said before, this is going to hurt one or both of them, perhaps.  If there is any respect left for either of the parties it is going to hurt the party who so-called “succeeds”, as well, because it recognises that the child is going to be kept away from a person who loves him dearly and would be of great help to him. 

37. This is not the end of the matter.  Taking into consideration all the matters, in particular those matters which are under section 60CC - and I refer to those as I am directed to do so.  In particular, I say I do not need to go through them seriatim.  I am quite certain that anybody reading my judgment would know the matters that I have placed particular emphasis upon.

38. The parties' claims are equal.  The parties' claims in relation to location are not.  The Peruvian-ness, if I may put it that way, of the child at such a young and tender age requires him to be removed back to Peru as soon as possible.   If in fact he stays here for another 12 months, notwithstanding the mother's good intentions, she would by that time, I expect, be concerned about leaving Australia, but if he is there she will consider leaving Australia.  I am sure she does not have to and I am not indicating she has to. 

1. I have no hesitation in saying that the child should live with the father and that the father is entitled to remove the child from the jurisdiction.  I do not think it is necessary for me at this stage to make any specific orders for spending time with her, unless I am requested to do so.  I think there is sufficient goodwill between the parties to recognise it as essential that the child have as much time as he possibly can with his mother before he leaves.  Unless I am specifically asked to particularise, I think it is about time they both showed their love and respect for their child to not quibble about the time he will spend with his mother prior to his leaving.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  12 October 2007