Gueye Sane and Sane Daramy

[2012] FamCA 1054

FAMILY COURT OF AUSTRALIA

GUEYE SANE & SANE DARAMY [2012] FamCA 1054

FAMILY LAW – CHILDREN – interim orders in relation to the mother being able to take the children outside the jurisdiction for holidays – orders for the father’s time and communication with the children during those holidays

Family Law Act 1975 (Cth)

APPLICANT: Ms Gueye Sane

RESPONDENT: Mr Sane Daramy

FILE NUMBER: SYC 5171 of 2012

DATE DELIVERED: 12 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Edwards Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Knox

SOLICITOR FOR THE RESPONDENT: Taylor & Scott

Orders

1. The names of the children, B born … April 2001, C born … May 2006, D born …September 2008 and E born … November 2010, be temporarily removed from the Australia Federal Police airport watchlist for the purposes of enabling the mother and the children to travel to and from Country F in Central Africa pursuant to order 2.

2. The mother be permitted to travel with the children to Country F in Central Africa on a flight departing from Sydney on 17 December 2012 and the mother shall return the children from Country F to Sydney on 16 January 2013.

3. The children spend time with the father:

   3.1.From 5pm Thursday 13 December 2012 to noon Sunday 16 December 2012;

   3.2.From 6pm Friday 18 January 2013 to 4pm Friday 25 January 2013.

4. Whilst the mother is in Country F, the mother cause the children to telephone the father’s mobile telephone twice per week between 9.30am and 10am Country F time and the mother is to encourage the children to speak to their father and in the event that the father wishes to do so (upon giving notice to the mother by electronic means) the mother organise the children in the alternative to speak to the father via Skype twice per week between 9.30am and 10am Country F time and in those circumstances, the mother shall provide the father with the contact number in Country F for the father to call the children.

5. Prior to leaving Australia, the mother is to provide to the father’s lawyers a signed transfer of ownership of her …motor vehicle for them to hold that transfer as security for the mother returning the children to Australia and in the event that the mother fails to return the children pursuant to order 2, then seven days after that date the father shall be entitled to take possession of the … motor vehicle and register the transfer.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sane Daramy & Gueye Sane 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 5171 of 2012

Ms Gueye Sane

Applicant

And

Mr Sane Daramy

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother’s application is that she be able to travel with the four children of the marriage, B born in April 2001, C born in May 2006, D born in September 2008 and E born in November 2010 (“the children”) to Country F in Central Africa for the period between 17 December 2012 and 16 January 2013.

2. The father opposes that order being made on the basis that he asserts that the mother is a flight risk and she will either stay in Country F for an extended period or go to another part of the world, which will lead him to have to search for the children and if he finds them, take action to have them returned to Australia.

3. The mother was born in Country F in 1979 and is currently 33 years of age. The father was born in Country F in 1977 and is currently 35 years of age.

4. The parties commenced cohabitation in September 2001 and were married in December 2002. They separated on 20 June 2012 whilst living in Australia.

5. The four children have all been born in different countries and none of them were born in Country F.

6. B who is 11 years old was born in Montreal; C who is 6 years old was born in New York; D who is 4 years old was born in London and E who is just 2 years of age was born in Sydney.

7. From 2001 to 2006 the parties lived in Toronto, Canada. From 2006 to 2007 the parties lived in New York.  From 2007 to mid 2010 they lived in London. From June 2010 the father commenced living in Sydney and the mother joined him in August 2010. They have lived in Sydney since that time.

8. Both the parents are currently Canadian citizens and reside in Australia on 457 visas. All children hold Canadian passports which are in the mother’s possession.

9. The maternal grandmother has lived extensively with the parties in the various places where the parties have lived from time to time.

10. The mother proposes that whilst in Country F she and the children will be staying with her aunt for a few days and then at the mother’s family home in the capital city Yaoundé. The mother says she will also spend some time at her family home in their village in the western province and that the father is familiar with her family members and where they live. The father raises no concern in terms of safety of the children travelling to the locations described by the mother. The father also has extended family in Country F.

11. The mother says that she arranged the trip to Country F for several reasons, which included:

    11.1.For her mother to fulfil her visa conditions to enable her to return to Australia;

    11.2.For the children and herself to visit extended family and friends in Country F;

    11.3.For the children to attend and participate in her brother’s wedding during which B will play the piano and C will be the ring bearer;

    11.4.For the children to spend time in the country which is part of their culture and heritage;

    11.5.For the children to have a fun holiday during the Christmas/new year period.

12. The issue of the trip to Country F is first raised by the mother in an email between the parties dated 5 July 2012. The mother writes to the father, inter alia:

    Mr G (the mother’s brother) is getting married in Country F in December. So I would like to go with the children. I will look for tickets soon. What we can do, maybe, is that I can have them for the Christmas/new year’s holidays one year and you can have them the year after?

13. The father responds to that part of the mother’s email by email on the same day in the following terms:

    For Country F: Mr H [the father’s brother] is also getting married in December, we can perhaps coordinate dates so that you go with the children and I come back with them?

14. On 19 July 2012 the mother booked airfares. She says she spent $10,000 on return airfares for herself and the children to go to Country F and a further $2,700 for a return airfare for her mother from Country F to Australia with travel dates coinciding so that she can help with the children on the trip back to Australia from Country F. The flights are detailed in the itinerary from Flight Centre being Annexure E to the mother’s affidavit filed 9 November 2012 and Annexure A to the mother’s affidavit filed 7 December 2012.

15. The payments were made from the joint account of the parties. It seemed conceded by the father that there were two amounts paid from the joint account of the parties, HSB account #079-028262-118 on 18 July 2012. Annexure “D” to the mother’s affidavit sworn 3 November 2012 shows two amounts on 18 July 2012 in the sums of $9,892 and $2,750 being drawn and paid to “FLIGHT CEN”. The father’s assertion that he did not know about the mother’s purchase of tickets until 28 September 2012 seems inconsistent with him having that information available to him on the face of his joint statement. It is unlikely the father did not notice a transaction of almost $13,000 going through the joint account.

16. The father filed an application on 31 August 2012 (served on the mother on 7 September 2012) where he sought an order that the mother be restrained from taking the children out of Australia and the children be placed on the airport watchlist. The mother was due to take the children for a holiday to Vanuatu (a non Hague convention country) from 19 September to 23 September 2012. On 10 September the mother’s lawyers, by way of email, wrote to the father’s lawyers complaining that the father knew about the Vanuatu trip. Full details and itineraries in relation to the trip were provided. The matter came before the court on 17 September 2012 and the father consented to orders which allowed the mother to take the children to Vanuatu (a non Hague convention country) from 19 September 2012 to 23 September 2012.

17. In addition on 17 September 2012 orders were made by consent, pending further order, both parents be restrained from removing or attempting to remove the children from the Commonwealth of Australia. The father submitted that the court should put some weight on the fact that the mother did not raise, in those interim proceedings, the impending trip to Country F.

18. Upon return from the Vanuatu trip, the mother caused her solicitors to send a letter dated 28 September 2012 to the father’s solicitors seeking a consent order in relation to the Country F trip.

19. I accept the submission by the lawyer for the mother that the proceedings before the court two days before the mother’s due departure to Vanuatu were focused on that trip and nothing should be read into the fact that the issue of the Country F trip was not dealt with on that day.

20. The mother asserts in her sworn evidence that she has no intention of remaining overseas with the children and not returning to Australia.

21. I accept on the basis of emails provided by the mother that she now has a commitment from the University of Sydney for a further twelve months employment commencing in the new year. Up until a time shortly prior to the hearing that employment had not been confirmed and the mother looked for employment more widely elsewhere, including outside of Australia.

22. The father wishes to put some emphasis on the mother’s job search outside of Australia.

23. In particular, the father points to a copied email, sent to him by a mutual friend of the parent’s which was an email that friend had received from the mother. The email seems to be dated 29 August 2012, (although that is not absolutely clear), and contains the following statement:

    I am desperately trying to find a job back in London.

24. That communication however has to be seen in light of what the mother had already quite transparently conveyed to the father. In an email sent by the mother to the father on 2 August 2012, the mother told the father:

    I am looking for a job everywhere and anywhere at the moment, and I think that a few months from now, we can begin to negotiate this aspect. But just to give you the heads up so that you can begin to work out your own preferences.

25. It was clear that in the last few months the mother has been looking more widely than Australia for job opportunities. That was however, only in the context of her looking for employment in locations where the father had previously informed her that he could also find a job easily, being London, Toronto and/or Sydney.

26. The mother has offered her motor vehicle as security for her returning the children to Australia. She purchased a motor vehicle shortly after separation on 18 July 2012 to transport herself and the children as the father had the family motor vehicle. The motor vehicle was purchased for $8,500. I will make an order allowing the father to take possession of the motor vehicle in the event that the mother does not comply with the order to return the children to Australia. In a letter written by the mother’s lawyers to the father’s lawyers on 30 November 2012 an offer was made that the mother provide a signed transfer of ownership of her motor vehicle to the father as security for her returning the children to Australia. There is a disparity in the financial situation of the parties. I was informed the father’s income is about $330,000 per annum. The father works as a quantitative analyst. The father gives some limited information in his affidavit about his financial circumstances but the financial statement which was filed in the proceedings by him is not before me. The father seems to be able to borrow monies from his brothers overseas and the father purchased a second property in Toronto, Canada this year. I will make the order for the mother to provide the security that she offers. I acknowledge that this does not create a major incentive for the mother to return with the children. It provides some funds for the father for legal costs if she does not.

27. I am somewhat puzzled by statements made by the father in his affidavit relating to his ability to travel to Country F. In his initial email of 5 July 2012, which I have referred to above, the father envisages that he will be travelling to Country F this month.

28. In his affidavit filed 6 December 2012, the father says that he cancelled his initial plans (to travel to Country F this December), as “I could no longer afford to travel due to the mounting costs of separation”. I do not know what that expression means. Earlier in the same affidavit at paragraph 23 he says, “Due to financial difficulties at the moment, I am unable to travel to [Country F] to attend my brother’s wedding”. Again, the father does not provide any details as to why somebody who is on his income is in financial difficulties.

29. The mother has taken a new 12 month lease in Australia which does not expire until 23 November 2013.

30. The mother has been granted her own 457 visa in Australia which is valid until 16 November 2016.

31. The mother has now accepted an offer from her current employer to extend her employment contract for a further year after 22 February 2013 (having missed out on another employment position in Sydney).

32. The father relies upon his affidavit of 25 October 2012 to set out the basis upon which he says the mother is not facilitating the relationship between the children and himself. There is no doubt there is a good deal of acrimony between the parents at the current time. The child responsive memorandum however evidenced a joyful, spontaneous and affectionate relationship between the three younger children and their father with only B not greeting her father in her mother’s presence.

33. Having met with B on 19 November 2012, the family consultant recorded that B expressed anger towards her father, particularly in relation to his current unwillingness to permit the children to travel to Country F in December 2012 for their maternal uncle’s wedding. It seems reasonably clear that B was looking forward to playing a role in providing music at that wedding.

34. In terms of the lack of ties to Australia, the father also points to land in Country F that the mother intended to have her parents purchase on her behalf (evidenced by emails dated March 2012). It should be noted that this was a transaction that had been proposed whilst the parties were living together and the father conceded the transaction did not proceed. I do not place any great weight on that proposed purchase.

35. I accept that there is a risk that the mother might attempt to stay in Country F with the children. It is however in my view, not a large risk. I do not have evidence that would lead me to conclude that the mother would want to stay in Country F with the children on a long term basis. The email by the mother to the father dated 2 August 2012 is significant. The mother seems to be contemplating living where the father is working. There is no suggestion that she would be able to obtain employment in Country F similar to that which she could find elsewhere in the world.

36. Should the mother, contrary to her sworn evidence, travel to another country, it is most likely to be Canada (or perhaps the United Kingdom). The Hague Convention applies in both those countries.

37. Both parties are highly intelligent and I am confident the mother knows the risk that she would be running if the children were forcibly returned to Australia. Her future role as the primary resident parent would be in serious jeopardy.

38. She would also be advised that should she want to permanently relocate to another part of the world, this court could hear her application to do so.

39. On the basis that the mother provides her motor vehicle as security, the mother will be permitted to travel to Country F on the basis that she proposes. She is to be the subject of an order of this court to return the children at the time she promises.

40. There were discussions with the parties as to what arrangements would be made for the children to spend time with the father in Australia during the Christmas school holidays and what arrangements should be made for electronic communication in the event that an order was made allowing the mother to travel overseas.

41. The mother’s proposal is set out in Exhibit 2 and the father’s proposal is set out in Exhibit 3.

42. The mother asserts that she has difficulties with allowing the times sought by the father in Exhibit 3 on the basis that she worries about the father’s mental status.

43. In her affidavit filed on 4 October 2012, the mother deposes to a conversation she had with the father on 21 May 2012. She says that the father said to her words to the effect of:

    Towards the end of 2011 I was very depressed with constant thoughts of committing suicide. At one time I stayed in the garage of our previous home [being our previous rental home at 15 Carlyle Lane, Wollstonecraft], with doors locked and the car running for 30 minutes. My biggest concern was to make it look like an accident so that you and the children could still claim on my life insurance.

    Several days later, she says the father said to her words to the effect of:

    A few days ago I went and bought some sleeping pills as I couldn’t relax. I took more than the prescribed recommended dose as I was hoping to sleep forever, and I have always been depressed and this seems to be heightened by stress at work but now I am so relieved I no longer have to lie so much and all the time.

    [the reference to a “lie” is a reference to the father being bisexual]

44. The mother said to the father that he should go and discuss these things with his GP and apparently the father did.

45. In the father’s affidavit replying to what the mother has said which the father filed on 25 October 2012, the father says:

    I vehemently deny ever trying to commit suicide

46. The lawyer for the mother indicated from the bar table that there were notes in subpoenaed documents which indicated that the father had suicidal ideation and that was conceded by counsel for the father. It seems therefore that the father concedes at least that at the end of 2011 he was very depressed with constant thoughts of committing suicide. However, it is clear that the mother left the children with the father for a period of 5 nights after the conversation which the mother says causes her concern.

47. Given what is recorded in the recent counselling memorandum, I have no real concerns about the father having extended overnight time with the children.

48. The mother’s proposals seem to be based upon what is happening during school term and are not necessarily a desirable arrangement during the more extended Christmas period.

49. I will make orders in accordance with Exhibit 3 except electronic communication between the father and the children can be twice a week (as proposed by the mother in Exhibit 2) rather than every four days; and the father can have the option to communicate with the children via Skype rather than by mobile phone (as proposed by the mother in Exhibit 2).

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 December 2012.

Associate: 

Date:  12.12.2012