GAVINO & ELVIRA

[2020] FamCA 197

FAMILY COURT OF AUSTRALIA

GAVINO & ELVIRA [2020] FamCA 197

FAMILY LAW – CHILDREN – With whom a child lives – Interim orders – Where there are no existing parenting orders – Where the children have been in the primary care of the mother since separation – Where the father lives in a different state to the children – Where the mother travelled to Colombia with the children – Where the children are dual citizens – Where the children are not permitted to leave Colombia to return to Australia with the mother without both parent’s consent – Where the mother seeks the children live with her – Orders.

FAMILY LAW – CHILDREN – Parental Responsibility – Interim orders – Where the mother seeks sole parental responsibility – Orders.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Gavino

RESPONDENT: Mr Elvira

FILE NUMBER: DNC 119 of 2020

DATE DELIVERED: 11 March 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coonan

SOLICITOR FOR THE APPLICANT: Coonan & Coonan Legal

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

UPON NOTING:

A.That the father now gives his permission and consent to X born 2012 and Y born 2014 (“the children”) to leave the Republic of Colombia and return to the Commonwealth of Australia forthwith;

B.That the parties acknowledge the children are citizens of Australia;

C.That since the separation of the parties in or around June 2017 the children have remained in the primary care of the mother and have resided at all material times in the Northern Territory.

IT IS ORDERED UNTIL FURTHER ORDER:

1. The mother have sole parental responsibility for X born … 2012 and Y born … 2014 (“the children”).

2. The children live with the mother.

1. The children spend time with the father on their return to the Commonwealth of Australia at times and conditions as agreed between the parties or in default of agreement as ordered by the Court.

1. The proceedings be listed for hearing at 9.15am on 20 April 2020 with the parties to attend by telephone or video link.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:       DNC 119 of 2020

MS GAVINO

Applicant

And

MR ELVIRA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Initiating Application filed 4 March 2020, Ms Gavino (“the mother”) seeks parenting orders in respect of X born … 2012 and Y born … 2014 (collectively “the children”).  She seeks sole parental responsibility for the children and that they live with her.  The orders also provide for the children’s habitual residence to be recognised as the Northern Territory of Australia and that a copy of these orders be provided to any relevant authority including the Australian Central Authority of the Attorney-General’s Department in respect of their involvement in the administration and enforcement of orders pursuant to the 1996 Hague Convention on Parental Responsibility and Child Protection[1] (“1996 Hague Convention”) and/or the 1980 Hague Convention on the Civil Aspects of International Child Abduction[2] (“1980 Hague Convention”).

   [1] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002).

   [2] Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).

2. For reasons that are not clear, the mother seeks that the final orders be heard urgently and on an ex parte basis.  No interim orders are sought.  That is an error in the manner in which the application has been drafted.  It is clear that the orders that are sought by way of final orders, are also being sought by way of interim relief.  As would be apparent to the parties, there is no circumstance where the Court would make orders on an ex parte basis that would have the effect of finally determining the substantive parenting issues. 

3. There is no response to the Initiating Application.  However, Mr Elvira (“the father”) joined the proceedings by telephone link.  The proceedings have been filed as a matter of urgency and as it now transpires, both the mother, the father and the children are in City G, Colombia.  The parties have a Colombian connection and heritage and the children, whilst citizens of Australia, also travel on Colombian passports.  The conundrum for the parties is that the dispute between them as to the future and ongoing parenting arrangements in respect to the children has meant a standoff between them, with the detrimental effect of the children remaining in Colombia, in circumstances where both parties agree that they should return to Australia. 

4. The aspect that appears to confound the parties, and again, it may be a matter of misunderstanding, is that whilst each of them give their consent to the children leaving Colombia and returning to Australia, it appears that the mother’s consent is conditional upon the children returning with her to the Northern Territory.  The father’s consent is conditional upon the children returning with him to Melbourne.

BACKGROUND

1. The mother is currently employed full-time with the public service.  The father, it appears, is employed as a health professional in Melbourne, Victoria. 

2. Doing the best I can and understanding that when this matter is further considered there may well be dispute and disagreement in respect of the broad background, the position seems to be, that the parties commenced a relationship in or around the year 2000, they were married in 2006 and they separated in 2017 with a divorce order made in June 2018.  The parties have travelled frequently to Colombia and the children from time to time have travelled with them.  Following separation, the parties attempted to reach agreement as to how each of them would spend time with the children. 

3. Following separation, the father relocated to Melbourne where he commenced working as a medical practitioner.  The mother remained in the Northern Territory with the children.  I accept that there is some conflict between the parties as to the arrangements for the children to spend time with the father. There is a tyranny of distance which has caused difficulties for these parties that were not necessarily contemplated upon separation. 

4. The mother took the children to Colombia for the purpose of visiting family and friends.  As discussed, the children are dual citizens of Australia and Colombia and for reasons that are not clearly understood, the mother considered that it would be to the advantage of the children to travel on Colombian passports. 

5. I do not know whether there would have been any difficulty in the children travelling on their Australian passports, but as a result of the children entering Colombia on Colombian passports, the mother may well have acknowledged to the authorities that Colombian law would apply.  I have not been provided with any information in respect of Colombian law.  I am told what the mother thinks is the situation, but to the extent that I can only assume matters as they appear, I do so.  The mother says that the father refused permission and his formal consent for the children to exit the country. 

6. The father’s consent, according to the mother, was necessary before the Colombian authorities would allow the children to leave Colombia with her.  The father’s position is that he has never refused consent for the children to leave Colombia but that he did contemplate that the children should leave with him from Colombia and return to Melbourne.  If that was the father’s position, the mother resisted that action. 

7. The father’s concerns relate to his observations that the children are not faring well and that they may have some medical concerns.  The mother’s position is that her inability to remove the children from Colombia and return to Australia is the cause of any distress. 

8. The mother’s affidavit sets out a number of issues in terms of the observations of the children.  A problem for the mother was that, as a result of her employment, she did not have the ability to extend her leave and had to return to Australia leaving the children in Colombia with the maternal grandmother. 

9. The Australian and Colombian Consulates have been involved in the dispute and the children have also come to the attention of the child protection services in Colombia where there have been various attempts at mediating a resolution.  The children have been interviewed by a psychologist. The child protection services then considered that there was some issue in respect of the children spending overnight time in the father’s care. 

10. To some extent, those matters are now irrelevant.  The mother is back in Colombia and is able to remain in Colombia until about the end of March 2020.  The father is also in Colombia, having taken a leave of absence from his employment.  Each of the parties, taking into account their own separate circumstances, acknowledge that they are not able and do not have an intention to remain permanently or for a lengthy period of time in Colombia. The parties consider that their home is Australia.  The mother contends that following separation the children remained in her primary care and lived in the Northern Territory. 

11. The father does not suggest otherwise.  By reference to matters raised in the mother’s affidavit and the annexures, the mother sets out a Child Support Assessment issued on 23 January 2020 which confirms that the father has a child support liability annualised in the sum of $15,034, that the Assessment is based upon the 100 per cent care of the children by the mother and that there are significant arrears in excess of $11,000.[3]  I am not in a position today, nor indeed do I have jurisdiction to make any order or to give any consideration in respect of the arrears of child support.

    [3] See Affidavit of the mother filed 4 March 2020 at [50] – [51].

12. What I am able to understand from the documents is that at least as far as the relationship between the parties is concerned, they considered that the residence of the children was, at least for the time being, with the mother and that there was a child support liability based upon the mother’s 100 per cent care. 

13. The mother also annexes a letter from Mr C, Assistant Principal of B Primary School dated 3 February 2020.  The following extract is important:-

    Mrs Gavino has been in contact with me to ask that I send information to you relating to the education of her daughters, Y and X. 

    Y was enrolled at B Primary School on 29^th January 2018.  She attended Preschool for that year.  In 2019 Y was in class D.  This year, 2020, Y was enrolled to attend Year 1 Church.

    X was also enrolled at B Primary School on 29^th January 2018. She attended class E for that year.  In 2019 X was in Year 1 Church.  This year, 2020, X was enrolled to attend Year 2 class F. 

    Both Y and X are very well behaved students and have established many good friendships with their peers at the school.  Academically they have been performing very well.  We are looking forward to them resuming their education at our school. 

    Mrs Gavino is a wonderful parent and mother.  She is the main carer of X and Y and is the first point of contact in matters relating to their education and welfare.[4]

    [4] Ibid annexure “M – 12”.

14. The annexures also include confirmation from the public service in terms of them confirming the mother’s employment with the public service and setting out the arrangements in respect of her leave.[5]  Her leave, initially on recreational grounds, was between 25 November 2019 and 20 January 2019.  The mother returned to the Northern Territory on 14 January 2020 and the public service understood that the problem with the mother returning with the children related to issues of dual citizenship law and the requirement that both parties sign a letter enabling the children to leave Colombia for travel to the Commonwealth of Australia.  There is an update and that is, that the mother’s employer expects that the mother will return to work on or about 31 March 2020.

    [5] Ibid annexure “M - 14”.

15. I have also been provided with information relating to the children’s Colombian and Australian passports.[6] I have considered the correspondence passing between the mother and various Australian embassies setting out what they understand are the necessary requirements before the children are able to leave.[7]  They are matters for the parties to arrange but again they are only required in circumstances where the parties do not give their separate consent.

    [6] See Ibid [14].

    [7] Ibid annexures “M – 5” and “M – 6”.

16. The father presents with a clear desire to assist the mother in having the children leave Colombia as soon as reasonable and to return to Australia.  The father is to be commended for the assistance that he indicates to the Court he is now prepared to provide.  The father concedes, firstly, that he will give his consent but secondly, that at all material times these children lived in Australia and that they have resided in the primary care of the mother in the Northern Territory.  It seems to me that is an important concession by the father. 

17. The concession by the father should be given some weight by the Colombian authorities in terms of how the matter is to proceed should there be any difficulty with the father’s consent being provided.  The orders being sought by the mother are, by their very nature, parenting orders.  I am not going to determine, nor can I determine any orders in respect of the 1980 Hague Convention to which Colombia is a signatory.  Colombia is not a signatory to the 1996 Hague Convention.

18. Accordingly, it is not appropriate for the Court to make any determination or finding as to the children’s habitual place of residence, other than to note that both parties concede that the children reside in Australia and live with the mother in the Northern Territory and that Australia is clearly the children’s home.  They are of course, Australian citizens.  They have Australian passports and there is no issue by each of the parties that they want to return with the children to Australia.

19. The orders that the mother seeks are parenting considerations and I must consider both the primary and the additional considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”). At this stage, I have scant information in the sense of any proper response from the father, but I am able to make certain findings that seem to me, to at least reflect the position that the children found themselves in prior to their parents embroiling them in the conflict which keeps them in Colombia, rather than returning to Australia and their home and school in the Northern Territory.

20. The orders that I am being asked to make are orders that I am told will have the effect of at least assisting the mother to persuade the Colombian authorities that the children should be released from Colombia, into her care and returned to Australia, in circumstances where there may be some difficulty with the father’s consent.  I consider that the matter needs to come back before me at an early opportunity to enable the father to return to Australia, seek some legal advice and put forward whatever application by way of response, seeking both final and interim parenting orders.  I have given an indication to the parties that, if they can prepare their case then the substantive matters can be the subject of early and expedited hearing in the August sitting of the Family Court of Australia in Darwin. 

CONCLUSION

1. Taking into account the objects of the Act and the matters raised in s 60CC of the Act, I consider that it is appropriate at this stage to make an order, that until further order, the children remain in the sole parental responsibility of the mother and that they live with her, with the notation that the father will give his consent to the children leaving Colombia.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 March 2020.

Associate: 

Date:  1 April 2020