Haykal and Krawiec

[2012] FamCA 6

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC [2012] FamCA 6

FAMILY LAW - PRACTICE AND PROCEDURE - Stay of orders pending appeal – Application for a review of orders made by Principal Registrar upheld – Where Principal Registrar’s orders permit the mother to travel overseas with the children – Where the father is concerned that the mother might retain the children in Poland – Where the mother has strong connections to Australia – Application for stay of orders dismissed

Family Law Act 1975 (Cth)

Clemett and Clemett (1981) FLC 91-013

APPLICANT: Mr Haykal

RESPONDENT: Ms Krawiec

FILE NUMBER: SYC 731 of 2009

DATE DELIVERED: 13 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 13 January 2012

REPRESENTATION

FOR THE APPLICANT: Mr Haykal in person

COUNSEL FOR THE RESPONDENT: Mr Schonell, SC

SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

1.That the father’s Application in a Case filed on 12 January 2012 is dismissed.

2.That the father pay to the mother’s solicitors her costs of the said proceedings as agreed or as assessed on a party / party basis.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 731 of 2009

Mr Haykal

Applicant

And

Ms Krawiec

Respondent

REASONS FOR JUDGMENT

Introduction

1.This is an application for a stay of orders made by me yesterday in proceedings between Mr Haykal and Ms Krawiec.  For convenience I shall refer to them as “the father” and “the mother” respectively.

2.The orders made by me yesterday in effect dismissed an application by the father for a review of orders made by the Principal Registrar on 16 December 2011 to the effect that the mother be permitted to remove the children S born in January 1997 and N born in July 2002 from Australia for an overseas holiday to the United Kingdom with stopovers in the United Arab Emirates departing on 15 January 2012 and returning on 30 January 2012.

3.My orders made yesterday in relation to this matter were as follows: 

1.That the Applicant Father’s Application in a Case filed 29 December 2011 and Amended Application in a Case filed 10 January 2012 be dismissed.

2.That [S] born on […] January 1997 and [N] born on […] July 2002 (collectively referred to as “the children”) be permitted to travel overseas with the Respondent Mother from 15 January 2012 to 30 January 2012.

3.That forthwith the Respondent Mother will lodge an amount of $20,000.00 in her solicitor’s trust account to be held in trust pending further order or until the children return to Australia.

4.In the event the Respondent Mother travels overseas with the children, that within 48 hours of her return to Australia she lodge the children’s passports to be held by the Registry Manager of the Family Court at Sydney to be released with the written consent of both parties or by further order of the Court.

5.The Respondent Mother be restrained from taking the children to Poland and from removing the children to any country outside Saudi Arabia, the United Arab Emirates and the United Kingdom.

6.That the Court requests that the Australian Passport Office issue and release to the Respondent Mother the Australian passports for [S] born on […] January 1997 and [N] born on […] July 2002 within 24 hours.

7.That the names of the children be removed from the Australian Federal Police Airport Watchlist for the purpose of overseas travel in accordance with these orders.

NOTATION

A.It is noted that the Respondent Mother has lodged the sum of $20,000.00 into the trust account of Michael Conley Lawyers on 22 December 2011.

2.That the father pay the mother’s costs of this Review as agreed or assessed on a party / party basis.

3.That the application contained at paragraphs 6, 7 and 8 of the mother’s Response to Initiating Application filed on 7 November 2011 is dismissed.

4.As was submitted by learned Senior Counsel for the mother the Court’s power to grant or refuse a stay is entirely discretionary.  But having said this, a number of principles have been developed over the years to assist in considering how the Court’s discretion ought to be exercised.

5.For instance, in the well-known case of Clemett and Clemett (1981) FLC 91-013 the Full Court of this Court said at page 76,175 as follows:

… in determining whether a stay of proceedings should be granted in custody matters clearly the welfare of the child should be paramount, as it should in all matters affecting the child.

6.The Full Court went on to say at the same page:

If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant the stay of proceedings for at least a short period.

7.I propose to consider these matters in reverse order and consider first whether the father’s appeal can be dealt with within a reasonable time. 

8.The arrangements are for the mother, children and her mother to commence their proposed holiday this coming Sunday, 15 January 2012 by departing Sydney for the United Arab Emirates where they propose to stay for four nights then fly on to the United Kingdom leaving the United Arab Emirates on 20 January and arriving in the United Kingdom the same day.

9.I note for the record that it is now Friday.  I would have thought it unlikely that a Full Court could be convened to hear the appeal today.

10.This also raises an important consideration which was also referred to by learned Senior Counsel.  This is that in circumstances where a Full Court is unlikely to be able to be convened today to hear the appeal, a decision to refuse a stay of orders would render the appeal nugatory.

11.On the other hand, to grant the stay sought would deprive the mother of the fruits of her litigation.  I shall refer to this again below.

12.That takes me to whether the appeal appears to be based on substantial grounds and whether it is being made bona fide. 

13.There was a submission to the effect that the father is being obstructionist although this was put in the sense that the father’s opposition probably arises out of him not having come to terms with the loss of his marriage and his family life and from his loss of trust in the mother.  These matters were the subject of findings by Walker FM in the substantive parenting proceedings approximately 12 months ago, and referred to by me yesterday.  In my view the father holds a heartfelt concern that the mother might take the children to Poland and retain the children in Poland.

14.I considered his evidence in support of his concerns yesterday.  Similar concerns were expressed by the father today although perhaps more generally.  These consisted mainly of his allegations that at approximately the time just prior to the parties separating, the mother had put pressure on him to sign applications for the children to become Polish nationals and that she had threatened to go to Poland with the children and not return them to Australia.

15.During her cross-examination yesterday, the mother said that the father had been only too happy to facilitate the process under which the children became Polish nationals.  She also denied ever having threatened to move to Poland and retain the children in Poland.

16.I have accepted her evidence about these matters as being more likely to be correct than the father’s assertions.

17.But the father made it clear today that there is another reason why he finds himself unable to trust the mother.  This is because he said that she led him to believe that in proceedings relating to an application for an AVO she would agree to the children not being included as persons named in such order as being protected by the order.  But he said that when he consented to such an order he found the mother had reneged and the children’s names still appeared on the order.  I am unclear what the actual situation is in respect of this matter.  However, I accept that the father is very upset by the existence of the AVO particularly in this form, and that it is one of many matters which causes him to be suspicious of the mother.

18.The father also said that he is concerned that the mother has made numerous overseas trips in the last few years and he does not know the purpose of these trips.  He said he is concerned that she might have used such visits to plan to keep the children overseas.

19.I accept that the father retains serious concern that the mother will not return the children if permitted to take them overseas.

20.I come to consider the best interests of the children. Yesterday I did this in the context of the relevant considerations in s 60CC(2) and (3) of the Family Law Act 1975.  I do not propose to repeat everything I said in relation to these matters then.

21.However, it is clear that the mother had been endeavouring to obtain the father’s permission for the children to accompany her on the proposed holiday for some months.  She wrote to him, or perhaps her solicitor did, well in advance of filing her application, but to no avail.

22.The mother said that the holiday will include attendance at a soccer match in the United Kingdom.  She said that S is an avid supporter of a United Kingdom Football Team and one of the reasons for the holiday is that he is entering his senior year at School 1 and it will become more difficult for him to have this sort of holiday in future.

23.It would be astonishing to think that when the children have had an expectation about going on this holiday that if they were prevented from taking it they would not be extremely disappointed.  Having said this, the father said that N has informed him this week, during her time spent with him, that she does not wish to go on the overseas holiday. 

24.Whether such a view, if expressed, would properly reflect the child’s wishes should be treated with caution in my respectful view, given all of the complexities of this case.

25.No doubt there would be many positive experiences for the children not only in simply enjoying a holiday but also observing and experiencing some of the culture offered not only in the United Kingdom, but also in the United Arab Emirates where they are booked to spend several days on stopover each way of the journey.

26.As against these matters, the Court must be careful to weigh the risk about which the children’s father is very concerned.

27.Obviously, in view of the children being Australian children, and well settled in Australia, prima facie it would not be in their interests not to be returned to their country and to their father.  Although the relationship between S and his father has broken down, it is clear that N has a meaningful relationship with her father and spends time with him regularly pursuant to current orders of the Federal Magistrates Court.

28.There are numerous incentives for the mother to return to Australia.

29.The mother assured this Court and the father on her oath yesterday that what she proposes is a holiday and that she has no intention of not returning to Australia in accordance with the itinerary.

30.The mother owns her own home in Sydney subject to a mortgage.

31.She is an Australian citizen and she has made her life in Australia since coming here in 1994.

32.She is the owner of an apparently successful business in Sydney and informs the Court that she is entrusted with a trust account of clients’ funds the current balance of which is approximately $1.5M.

33.Both children are enrolled in Sydney schools, S at School 1 and being in Year 10 this year and N at School 2.  Both children are well settled in their schools.

34.The mother has placed $20 000 with her solicitors as a security which could be used by the father for legal assistance in the event the children are not returned.

35.An injunction is in place restraining the mother from taking the children to Poland or any country outside Saudi Arabia, United Arab Emirates and the United Kingdom.

36.I note also that the Hague Convention on the Civil Aspects of International Child Abduction applies between Australia and the three countries which might present as possible destinations for the mother.  These are Poland, Greece and the United Kingdom.  In the unlikely event that the mother stayed in one of these countries, noting that the mother is a Polish National and spent some years in Greece before the parties met, appropriate action could be taken under the Convention for Court orders for return of the children from these countries.

Conclusion

37.In all these circumstances, and consistently with the best interests of the children, in my view, the Court should exercise its discretion to refuse the father’s application for a stay of the orders made yesterday.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 13 January 2012.

Associate:     

Date:              13 January 2012