Hagi and Hagi

[2013] FamCA 733

FAMILY COURT OF AUSTRALIA

HAGI & HAGI [2013] FamCA 733

FAMILY LAW – CHILDREN – interim – where the father sought to spend time with the child in a country which was subject to a DFAT travel warning – where the country was not party to the Hague Convention – where the mother asserts the child has special needs – where it was in the child’s best interests to spend time with his father outside of Australia – where the father was ordered to provide security both in cash and real property

APPLICANT: Mr Hagi

RESPONDENT: Ms Hagi

INDEPENDENT CHILDREN’S LAWYER: Paul Walkden 

FILE NUMBER: SYC 1719 of 2011

DATE DELIVERED: 20 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

SOLICITOR FOR THE APPLICANT: Sage Solicitors

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. The mother and the father are to have equal shared parental responsibility for the child B born … 2002.

2. The child is to spend time with the father as follows:

   2.1.For all of the July public school holidays as agreed between the parties and in the absence of agreement from the conclusion of school on the last day of the school term and concluding one day prior to the recommencement of the school term with such time to be exercised in the Commonwealth of Australia.

   2.2.For half of the Christmas school holiday period, such half to be agreed between the parties and in the absence of agreement the first half in even numbered years and in odd numbered years for one half of the school holidays with the father to ensure that the child is returned to the mother at least 5 days prior to the commencement of the new school year and the father be permitted to remove the child from the jurisdiction of the Commonwealth of Australia to exercise such time.

   2.3.Such other times as may be agreed between the parties.

3. Subject to Order 4 being implemented by the father, and subject to Order 22, the child is to travel to Kuwait accompanied by at least one of the following adults:

   3.1.The father;

   3.2.The father’s current wife, Ms C Hagi;

   3.3.The paternal uncle;

   3.4.The paternal grandmother;

   3.5.The paternal grandfather.

4. Prior to the child leaving Australia, the father is to secure the mother’s costs associated with her seeking to have the father return the child to Australia, in circumstances where he has failed to do so, by arranging for:

   4.1.the deposit of an amount of $20,000 into a controlled monies account with the father’s solicitors seven days prior to the child’s departure from Australia and for the duration of the period of time the child is out of Australia with the solicitor for the father to confirm that deposit with the mother in writing; and

   4.2.the paternal grandparents to provide the mother with a charge over their interest in real estate in Australia to secure a sum of $80,000.00. The mother shall be entitled to lodge a caveat over such real estate interests, pursuant to the said charge.

5. For the purpose of the father spending time with the child as referred to in Order 2.2 the father will give the mother 60 days notice in writing of the child’s travel arrangements that he had made, including travel and telephone details and a notice in writing from the airline that the child has been booked to fly and details of the person whom is to accompany the child.

6. For the purpose of facilitating Order 2.2 the mother will deliver the child to the airport nearest her residence (or such other airport as agreed between the parties) for the flights booked by the father and notified to her, and the father or a person referred to in orders 3.2 – 3.5 (“the father’s agent”) will collect the child from such airport at the commencement of his time with the child and the father or the father’s agent will deliver the child to such airport at the conclusion of his time with the child and the mother will collect the child from the airport nearest her (or such other airport as agreed between the parties).

7. Whenever the child travels internationally pursuant to these orders, upon completing his journey the parent whom he is with shall telephone the other parent as soon as possible to confirm the child’s arrival.

8. The father shall pay or arrange for his employer (the Commonwealth of Australia) to pay all costs associated with the child’s travel.

9. For the purposes of spending time with the child in accordance with Order 2.1, the father will collect the child as agreed between the parties and in the absence of an agreement from the child’s school at the commencement of his time with the child and will return the child to the mother’s residence at the conclusion of his time with the child.

10. The child have the following parental communication at the following times and in the following way:

    10.1.Telephone conversations with the father between 7.30pm and 8.30pm Australian Eastern Standard Time each day and to facilitate such telephone calls or other means of electronic communication the mother will have the child available to speak with the father.

    10.2.Telephone conversations with the mother when the child is in the father’s care between 7.30pm and 8.30pm Australian Eastern Standard Time each day and to facilitate such telephone calls or other means of electronic communication the father will have the child available to speak with the mother.

    10.3.Telephone conversation or electronic communication with the mother as the child may request and the father will facilitate the making of such telephone call or electronic communication.

    10.4.Telephone conversation or electronic communication with the father as the child may request and the mother will facilitate the making of such telephone call or electronic communication.

    10.5.The parties must ensure as far as practicable the child has privacy during telephone conversations with the other parent.

    10.6.Communication from the father by way of all letters, mail and gifts and the mother will hand such communication to the child unopened.

11. The mother shall ensure that the father is kept informed of:

    11.1.Any medical problems or illnesses suffered by the child while in the mother’s care;

    11.2.Any medication that has been prescribed for the child;

    11.3.Any social, school or religious functions which the child is to attend;

    11.4.The residential address of the mother and particulars of the others who may reside with the child;

    11.5.Any other matter relevant to the child’s welfare.

12. The father shall ensure that the mother is kept informed of:

    12.1.Any medical problems or illnesses suffered by the child while in the father’s care;

    12.2.Any medication that has been prescribed for the child;

    12.3.Any social, school or religious functions which the child is to attend;

    12.4.The residential address of the father and particulars of the others who may reside with the child;

    12.5.Any other matter relevant to the child’s welfare.

13. For the purposes of communicating information between parties the mother and the father shall:

    13.1.Communicate by telephone matters of an urgent nature; and otherwise

    13.2.Communicate by email about day to day matters including arrangements for each party to spend time with the child.

14. In the event the father wishes the mother to facilitate communication by either the use of skype and/or facetime on a computer or iPad, then the father is to provide sufficient funds to the mother to enable her to acquire that item.

15. Each party is to refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and each party is to do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

16. Each party is to advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.

17. The mother is to inform the father in writing as soon as practicable of any specialist medical appointments with any psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant”) in relation to the child.

18. The mother is to do all acts and things to ensure that the father is provided with all reports by any such consultant.

19. Within 14 days of these Orders and within 14 days of the child’s subsequent enrolment at any school the mother is to do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the father copies of all of the child’s school reports and merit cards, and any written material pertaining to the child’s academic and extra-curricular activities.

20. The father furnish to the mother within seven days of receipt of same copies of all order forms for school photographs of the child.

21. In the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contract with either the medical practitioner, medical centre or hospital.

22. Each party be and hereby are restrained from taking the child to a foreign country that has a travel advisory (as advised by the Australian Department of Foreign Affairs and Trade) higher than “exercise a high degree of caution”.

23. Each party will use their best endeavours to remove the child immediately from a foreign country outside the Commonwealth of Australia if the Commonwealth of Australia has issued a travel advisory (as advised by the Australian Department of Foreign Affairs and Trade) higher than “exercise a high degree of caution”.

24. The parties are to sign all documents and do all acts necessary to have the Commonwealth of Australia issue a passport for the child and such passport is to remain with the parent the child is living with at the time.

25. The child is to spend time with the paternal grandparents as follows:

    25.1.During school terms, each fourth weekend from after school on Friday until 4.00pm Sunday.

    25.2.Such other time as may be agreed between the parties.

26. For the purposes of spending time with the child in accordance with Order 25.1, the paternal grandparents will collect the child as agreed between the mother and the paternal grandparents or one of them and in the absence of an agreement from the child’s school at the commencement of their time with the child and will return the child to the mother’s residence at the conclusion of their time with the child.

27. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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 Hagi & Hagi 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 1719 of 2011

Mr Hagi

Applicant

And

Ms Hagi

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties in this matter married in 2000 and were married for nine years. The father is about to commence his role as the Trade Commissioner and Counsellor Commercial at the Australian Embassy in Kuwait.  This case is primarily about whether the child B, who was born in 2002, should spend time with his father in Kuwait this Christmas.

APPLICATIONS

1. The majority of the parenting orders which I make are agreed to by the parents.

2. The parties agree that the child should live with his mother. The Independent Children’s Lawyer proposed that the parties have equal shared parental responsibility. Both parties agreed to that order being made.

3. The father proposes that he spend the whole of the July school holidays with the child in Australia. The mother did not oppose the father spending time with the child in Australia during the July school holidays but she sought that his time with the child commence on the first Monday of the school holidays so that she may take the child skiing on the prior weekend.

4. The father initially proposed that the child spend all of the Christmas school holidays in Kuwait. The Independent Children’s Lawyer proposed that the child spend time with his father in Kuwait for half the Christmas school holidays. The father agreed to the Independent Children’s Lawyer’s proposed order. The father proposed that the child travel to Kuwait accompanied by any or all of a nominated group of adults; namely himself, the father’s current wife, the paternal uncle, or one or both of the paternal grandparents. The mother does not oppose any of those adults accompanying the child to Kuwait.

5. The mother opposed the child spending any time with his father outside of Australia at least until the 2014-2015 school holidays and even then subject to the time being spent in a country that had the safest level of travel advisory as issued by the Department of Foreign Affairs and Trade (“DFAT”).

SHORT HISTORY

1. The mother was born in 1972. She is currently aged 41 years.

2. The father was born in 1975. He is currently aged 38 years.

3. The parties married in Australia in 2000.

4. The child the child was born in 2002. He is currently aged 11 and a half.

5. The parties separated in April 2009.

6. On 8 June 2013, the father left Australia. He has taken up a position as Trade Commissioner and Counsellor Commercial for Kuwait.

TRAVEL ADVISORY RISK

1. The father is currently working in Saudi Arabia, pending the establishment of his office in Kuwait. He said in his affidavit that he expected to relocate to Kuwait at the end of August or in early September 2013. On the day of the hearing, he said he was to be permanently in Kuwait from early October 2013.

2. The mother asserts in her affidavit that Kuwait is located in a “precariously volatile geographic and political conflict area”. She annexes to her affidavit the current DFAT travel advisory about Kuwait. There are four levels of travel advisory, in order of safest to least safe:

   14.1.exercise normal safety precautions;

   14.2.exercise a high degree of caution;

   14.3.reconsider your need to travel;

   14.4.do not travel.

3. The current DFAT travel advisory for Kuwait overall is at the rating “exercise a high degree of caution”. DFAT advise a high degree of caution is necessary “due to the on-going threat of terrorist attack and the presence of unexploded ordnance and landmines”.

4. The father took the position that the child should spend time with him in Kuwait if the travel advisory was below “do not travel”. The Independent Children’s Lawyer took the position that the child should spend time with the father in Kuwait if the travel advisory was below “reconsider your need to travel” (which it currently is). The mother took the position that the child should spend time with the father in Kuwait if the travel advisory was below “exercise a high degree of caution” (which means the child could not currently spend time in Kuwait with his father).

5. The mother in any event disagrees with the child going to Kuwait in 2013-2014 Christmas holidays but agrees to the child spending time in Kuwait over the 2014-2015 Christmas school holidays if the lowest travel advisory warning is in place at that time. She pointed to the civil unrest surrounding the Kuwaiti parliamentary elections on 27 July 2013 and submitted that the situation in the Middle East would either “subside or escalate” in the next year.

6. The father has worked as an Australian diplomat for over ten years. He has been posted in Saudi Arabia and Egypt.

7. The father says he has secure accommodation in Kuwait. He says the building has 24 hour security personnel. The mother accepts the father will have security presence at his home.

THE EXTENT TO WHICH THE FATHER POSES A FLIGHT RISK

1. The mother asserts that the father is a flight risk.  Kuwait is not a party to the Hague Convention.

2. Counsel for the father submitted that a wrongful retention of the child in Kuwait was unlikely because it would compromise the father’s diplomatic employment with the Australian Government.

3. The father has agreed to provide security for the child’s return to Australia. The father offers a cash bond of $20,000.

4. The mother seeks a bond of $100,000. She has a deep mistrust of the father and says he is a likely flight risk given his strong links to the Middle East.

5. Exhibit 2 is the balance sheet. The father has some assets in Australia; he has a motor vehicle worth $23,500, superannuation and some equity in the joint property he holds with the mother.

6. The paternal grandparents also own property in Australia. The paternal grandparents agreed that a charge (in the sum of up to $100,000) could be placed over their property and the mother be able to lodge a caveat pursuant to that charge.

THE MOTHER’S ASSERTIONS THAT the child HAS SPECIAL NEEDS

1. B is due to commence high school in 2014. The mother says he will need the Christmas 2013-2014 school holidays to “catch up with his peers and prepare for his new school year”.

2. The mother annexes to her affidavit sworn 29 August 2013 a report from Suburb D Speech Pathology where the child was assessed on 26 May 2012. The speech pathologist assessed the child as having a moderate delay in both his receptive and expressive language. She recommended fortnightly speech therapy. the child was placed on a mental health care plan in August 2010. He was diagnosed as having “depression, speech delay, anxiety”.

TELEPHONE COMMUNICATION AND TIME WITH THE PATERNAL GRANDPARENTS

1. The Independent Children’s Lawyer proposed the father have telephone contact with the child on Mondays, Wednesdays and Fridays between 7.00pm and 7.30pm.

2. The mother proposed telephone communication daily between 8.00pm and 8.30pm. The father agreed to daily communication. The current orders provide for communication between 7.30pm and 8.30pm and there is no reason to narrow that window of time. 

3. The Independent Children’s Lawyer proposed that while the child is in the father’s care, the child have telephone communication with the mother between 7.00pm and 7.30pm every Monday, Wednesday and Friday. The mother proposed daily communication between 8.00pm and 8.30pm. Given that the child will be telephoning his father every day when with his mother, there is no reason at the child’s age why the opposite should not apply. The calls should be within the same hour as when he speaks to his father.

4. The Independent Children’s Lawyer proposed the child spend every fourth weekend with the paternal grandparents from Friday after school until Sunday 4.00pm. The mother sought the child’s time with the paternal grandparents commence on Saturday evening. She asserted both the paternal grandparents work on Saturdays. She conceded that the child is cared for by his adult uncle at the home of the paternal grandparents during those times.

RELEVANT SECTION 60CC FACTORS

1. There is benefit to the child having a meaningful relationship with both his parents.

2. The primary issue of risk which was the focus during submissions was the location of the father’s diplomatic posting. Although the child is at higher risk of harm in Kuwait than in Australia (due to the ongoing threat of terrorist attacks and civil unrest in Kuwait), I find that the father is experienced enough to be able to assess those risks and take appropriate precautions to safeguard the child.

1. Given the father’s current position, his employment history and the security offered, there is no unacceptable risk that the father will not return the child to his mother in accordance with orders made by this court.

2. The Independent Children’s Lawyer says that the child has expressed strong views in favour of spending time with his father in Kuwait.

3. Although the mother asserts that she has been, at times, the sole carer for the child, or the primary carer, I find there is a strong relationship between the child and his father.

4. The father says the Australian Government will pay for the child to visit him in Kuwait once per year.

5. Although I understand the mother’s desire to settle the child into high school and her concerns relating to the child’s academic levels, I assess his greater need to be the ability to spend holiday time with his father.

6. I have confidence that the father can deal with any anxiety the child might feel at observing security at checkpoints and other places in Kuwait.

CONCLUSION

1. I find it is in the child’s best interests to spend time with his father in Kuwait this Christmas school holidays. The Independent Children’s Lawyer proposed that in odd numbered years the child spend time with the father in the “second half” of the school holidays. However, given the child is to return to Australia at least 5 days prior to the commencement of the new school year, the phrase “second half” does not appropriately describe the period during which the child will spend time with his father. Rather, it will be one half of the school holidays which concludes five days prior to the commencement of the new school year.

2. I am of the view that the child should spend time with the father in Kuwait if the travel advisory is below “reconsider your need to travel”.

3. The father has offered to provide security for the child’s return to Australia. I find it is appropriate for the father to provide security given that Kuwait is not a party to the Hague Convention. That security should be in the sum of $100,000, to be $20,000 in cash and $80,000 by way of a charge over the paternal grandparents’ property.

4. In relation to the mother’s application that the father’s time with the child in Australia commence on the first Monday in the school holidays, I find that the child’s time with his father should be maximised while the father is in Australia (the father having travelled from Kuwait to see the child). I decline the mother’s request to delay the child’s time with his father so she can ski with the child in July.

5. The Independent Children’s Lawyer proposed that the child’s time with his father in Australia conclude two days prior to the recommencement of school. In the context of a short school holidays, with the child remaining in Australia, I am of the view that the conclusion of the father’s time should be one day before school recommences.

DIPLOMATIC PASSPORT

1. The parties consent to an order for the child to be issued a diplomatic passport. I have no evidence that is possible. I will make the order sought but delete the word “diplomatic”. If either party wishes that order to be varied they may file evidence establishing that the child could be issued with a diplomatic passport and I will alter the order in chambers.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 September 2013

Associate: 

Date:  20.9.13