Haykal and Krawiec (No 2)

[2012] FamCA 33

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC (NO 2) [2012] FamCA 33

FAMILY LAW - PRACTICE AND PROCEDURE - Registrar - Review of decision of Principal Registrar

Family Law Act 1975 (Cth) - s 37A, s 60CA, s 60CC, s 117(2)
Family Law Rules 2004 (Cth) - r 18.10

Keubler (1978) FLC 90-434

APPLICANT: Mr Haykal

RESPONDENT: Ms Krawiec

FILE NUMBER: SYC 731 of 2009

DATE DELIVERED: 12 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 12 January 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Dlakic of Johnston Vaughan Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell, SC

SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

1. That orders are made in accordance with the Minutes of Orders filed in Court today and signed by Johnston J and placed with the Court papers as amended by Johnston J at paragraph 3 as set out hereunder:-

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 Haykal] (“[S]”) born on […] January 1997 and [N Haykal] (“[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 Haykal] born on […] January 1997 and [N Haykal] 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.

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

1. 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.

1. That the Court notes that there are applications seeking summary dismissal and a Rice v Asplund issue concerning the substantive parenting application listed in the duty list at 10:00 am on 2 April 2012.

1. That it is directed that those applications are listed for mention only on that occasion so that neither party is to anticipate a hearing that day.

1. That the Court notes that the above direction has been made with a view to endeavouring to save the parties some legal costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec (No 2) 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 731 of 2009

Mr Haykal

Applicant

And

Ms Krawiec

Respondent

REASONS FOR JUDGMENT

1. This is a review of a decision of Principal Registrar Filippello and orders made by the learned Principal Registrar on 16 December 2011.  I will come to those orders in detail shortly, but those orders were to the effect that the children S Haykal, born in January 1997, and N Haykal, born in July 2002, be permitted to travel overseas with their mother from 15 to 30 January 2012.

2. The learned Principal Registrar was acting pursuant to a delegation of powers under Section 37A of the Family Law Act 1975 (“the Act”). Rule 18.10 of the Family Law Rules 2004 provides that a court must hear an application for review of an order of a Registrar as an original hearing. In other words, the court starts afresh.

3. Before I turn to some of the background matters, I just pause to set out the orders which the learned Principal Registrar made.  These were as follows:

   1.[S Haykal] (“[S]”) born on […] January 1997 and [N Haykal] (“[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.

   2.Within twenty-four (24) hours from the date of making these orders, the applicant/father shall do all acts and things and sign all documents presented to him by the respondent mother to obtain Australian passports for the children.

   3.In the event that the father fails to sign the documentation within 24 hours of the documentation being provided to him, a request be made to the Department of Foreign Affairs and Trade to issue the passports referred to in paragraph (2) herein uponthe signature of the mother alone.

   4.That the mother, within seven (7) days of the date of this order, lodge an amount of $20,000 in her solicitor’s trust account to be held by in trust pending further order or until the chilcren return to Australia.

   5.In the event the mother travels overseas with the children that within forty-eight 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 release with the written consent of both parties or by further Order of the Court..

   6.That the mother be restrained from taking the children to Poland from removing the children to any country outside Saudi Arabia, the United Arab Emirates and the United Kingdom.

   7.That the applicant’s response to an application in a case filed 1 December 2011 be dismissed.

4. Those effect that the children be permitted to travel overseas with their mother between 15 January and 30 January 2012.  The next order was that within 24 hours the father do all acts and things and sign all documents presented to him by the mother to obtain Australian passports for the children.  The next order was in the event that the father fails to sign the documentation within 24 hours of that documentation being provided to him, a request be made to the Department of Foreign Affairs and Trade to issue the passports referred to, upon the basis of only the mother’s signature.  The next order was that the mother, within seven days, lodge an amount of $20 000 in her solicitors’ trust account, to be held by the solicitors in that trust account pending further order or until the children return to Australia.

5. There was an order to the effect that in the event that the mother travels overseas with the children that within 48 hours of her returning to Australia she lodge the children’s passports to be held by the Registry manager of this Court, to be released with the written consent of both parties, or by further order of the court.

6. Registrar Filippello also ordered the mother be restrained from taking the children to Poland, from removing the children to any country outside Saudi Arabia, the United Arab Emirates and the United Kingdom.  There was another order which is unnecessary to refer to. 

7. I have been informed today that the children’s father declined to sign a passport application, and that the mother has been in negotiation with the Department of Foreign Affairs to make passports available for the children.  I understand that the administrative work has been undertaken, but those passports still have not issued. 

8. I understand further that the mother has lodged the surety of $20 000 in her solicitors’ trust account.

9. The father’s application is to the following effect.  Firstly, the father seeks an order that those orders to which I have just referred by the learned Principal Registrar on 16 December 2011 be set aside.  The father seeks an order to the effect that unless the parties agree to the contrary in writing, the children’s mother be restrained from causing or permitting the children to leave the Commonwealth of Australia pending further order.  He applies for an order to the effect that the Court request the assistance of the Australian Federal Police in the implementation of the orders.  The father seeks an order to the effect that unless the parties agree to the contrary in writing, pending further order and for a period of 12 months the details of the children be placed on, and remain on, the Airport Watch List.  He also seeks an order in relation to costs.

10. The brief background matters are that the father was born in Egypt in 1962 and the mother was born in Poland in 1964.  The mother came to Australia in mid-1994 and the father came to Australia later in 1994.  Then they commenced cohabitation in Australia.  They married in February 1996.  They separated sometime in 2008 and they were divorced in July 2010.

11. I note that the children are citizens of both Australia and Poland.  There are current orders of the Federal Magistrates Court, being final parenting orders made by that Court on 11 February 2011.  The broad effect of those orders is that the children live with their mother.  S is to spend time with his father in accordance with S’s wishes and in the circumstances set out in more detail in the orders.  N spends time under the orders with her father from the conclusion of her extracurricular activities on Saturday, or 10 am Saturday, until 6 pm Sunday in the first week, and after school Wednesday to before school on Thursday in the second week.  She also spends time in school holidays with her father.

12. I pause at this point to note that N is currently with her father, spending time with him in accordance with the requirements and provisions of those orders until noon tomorrow.  N is then to return to her mother.  This is relevant because there was a submission to the effect that, in those circumstances, if the Court permits the child to go overseas with her mother, then the child will not be missing out of any time in terms of those arrangements under the current orders with her father.

13. The father’s case is as follows.  He is worried that the children’s mother will abduct the children to Poland.  He said in his most recent affidavit that in late 2007 or early 2008, on the children’s mother’s return from a European holiday, including to Poland, that she asked him to sign applications for the children to become Polish Nationals.  He said he did not want to do this, especially in circumstances where the parents were having marriage difficulties.  He said that he did not trust the mother, or words to that effect.  He said that she then said that she should have forged his signature on the applications.  He said that after a time he relented and signed the forms.

14. Because of my concern that, because of the very recent filing of that affidavit, the children’s mother had not had an opportunity to file any material in response to that, I gave leave for Mr Schonell to have the mother go into the witness stand and give some evidence about this matter.  Those matters were put to her.  She was cross-examined in respect of those matters.  She denied that she had ever said anything like that she should have forged his signature on the application. 

15. The mother said that the whole context of this was somewhat different from that in which it was presented in the father’s affidavit.  She said that, to the extent that they had conversations about the children becoming nationals of Poland, that such conversations were before she went on a visit to Poland earlier in 2007.  The mother said there was nothing like the sort of conversation that was attributed to her.  She said that the children’s father was quite happy to have the children become Polish nationals.  She said that he signed the documents before she went to Poland and when she was there she attended to the appropriate authorities in Poland and handed in the appropriate documents at that time.

16. The children’s father went on to say in his affidavit that in 2008 the mother had informed him that she wanted to leave Australia and that, once she had left Australia, no one would be able to bring her back to Australia.  Those matters were put to the mother and, again, her very clear response was that she never said anything of the kind to the children’s father.

17. The father said that the mother made an application in 2010 to the Federal Magistrates Court to take the children to Poland.  He opposed that application. He said that ultimately that application was withdrawn.  There has been some discussion during this hearing about that matter.  As it turned out, the independent children’s lawyer had not been served with that application.  In the end, it became clear that there would not be time to deal with that, so the mother withdrew her application.

18. In any event, the children’s father said that he remained very concerned about what he described in his material as the mother’s true intentions.  The father said that he has also applied to the Local Court to discharge an apprehended violence order which operates against him and in favour of the mother, the children and the mother’s mother.  He said that he had instructed his lawyers to have a subpoena issued and this has been served on the children’s mother requiring her to attend at the Local Court on 18 January 2012.   I note that the children’s mother was asked specifically about those matters.  She said that she has had a discussion with the relevant police prosecutor who informed her that she did not have to attend at Court on that day.

19. Those are matters, really, which ought to remain between the parties, in my view.

20. The father said that in May 2010 the mother renewed her threats to him to remove the children from Australia and not to return them.  Again, the mother was taken to that specific allegation and again she denied that. 

21. The other part of the father’s case is that there are current proceedings in this Court which are substantive proceedings involving orders that he is seeking in respect of property and variation of parenting orders. He is seeking orders to set aside current property orders pursuant to Section 79A of the Act. He is also asking the Court to vary the parenting orders which were made in the Federal Magistrates Court. He is concerned that, if the mother was to stay out of Australia that might defeat these applications by him.

22. The mother’s case is that during the marriage she, the father and the children travelled overseas frequently on holidays and family visits.  She said that since separation the father has refused to permit the children to travel overseas. 

23. The mother said that she has made arrangements under which she has booked airline tickets and accommodation for herself, the children and her mother, to travel to the United Kingdom with stopovers in the United Arab Emirates.  The itinerary which she has arranged is for them to fly from Australia next Sunday, 15 January 2012 arriving in the United Arab Emirates on 16 January 2012, where they will spend four nights, then fly to the United Kingdom, leaving on 20 January.  They would arrive in the United Kingdom on 20 January and check out on 26 January 2012, then fly, arriving in the United Arab Emirates on 27 January 2012, spend three nights there, and check out on 29 January 2012, to fly to Sydney, arriving on 30 January 2012.

24. The mother said that S is an avid follower of a United Kingdom Football Team and wants to watch a game in the United Kingdom, which is set up for 22 January 2012.  The mother says that given that S will be commencing his senior years at his school, that is, that he will commence year 10 at his school, School 1, this year he would not have the opportunity to attend such a football game for some years.  The mother said that the stopovers in the United Arab Emirates offer beach resorts and this is where they plan to stay during those stopovers. 

25. The matter which guides the Court in all the applications in which a parenting order is sought is the best interests of the child. That is set out in section 60CA of the Act. How the Court is to go about its determination about what is in the best interests of a child is guided particularly by subsections 60CC(2) and 60CC(3) of the Act. The primary considerations are set out in section 60CC(2). The first of the primary considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents.

26. Given the nature of this application, I propose to deal with these matters in a somewhat brief way.  So far as a meaningful relationship with both of the child’s parents is concerned, obviously there would be benefits in terms of facilitating that relationship in children being able to freely travel and holiday with their parents.  This is what would be involved in what the mother proposes.  But of course there is another side of that.  Although there are some problems in the relationship between S and his father, N has an ongoing apparently good relationship with her father.  I say this in the sense that obviously the Federal Magistrates Court must have determined that that was the case because it made orders to facilitate specific time to be spent between N and her father.  So clearly in the event that the mother was not to return the children to Australia, that would have an effect on the relationship between the children, particularly N, and the father.  So those are matters which clearly must be borne in mind and weighed. 

27. The second matter is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  If the children were retained by the mother overseas, such might involve some level of psychological harm to them. 

28. The additional considerations include any views expressed by the children and their level of maturity.  I am not aware of any particular views.  But I infer from what I referred to above in terms of the children’s mother saying that S is a keen football follower and that part of this holiday will certainly enable opportunity for him to be able to indulge his interest in football, that he would be well and truly keen to be undertaking this overseas holiday.  There is certainly no evidence to the contrary.  So far as N is concerned I do not think there is anything relevant before the Court about her wishes. 

29. The next matter is the nature of the relationship of the children with each of their parents and other persons including a grandparent or other relative of the child.  Again, I really just repeat what I said in respect of the inference that I draw from the fact that orders were put in place.  On the basis that I have indicated, that clearly infers a good relationship at least between N and her father and obviously between both children and their mother.

30. The next matter is the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  I just make the observation, so far as the children’s mother is concerned, that it is clear that N is currently spending time with her father in accordance with the arrangements and that reflects well on the mother in terms of her willingness and ability in this regard. 

31. So far as the willingness and ability of the children’s father to facilitate and encourage the relationship, he is obviously pursuing this application out of a concern that he has.  There is some suggestion that things are somewhat more complicated than that in terms of the attitude of the children’s father to this proposal.  I was referred to a couple of paragraphs in the judgment of the learned federal magistrate, specifically paragraphs 54 and 75.  In paragraph 54 her Honour said that Dr Q had expressed the opinion that the father had a pattern of obstructionist behaviour and it was likely that he would not cooperate well in facilitating contact.  Her Honour said that there was ample evidence before the court to support that view.  Her Honour also made a finding that it was likely that in the father’s state of mind, that is, at the time that this matter was before the court now well over 12 months ago, that he would have difficulty facilitating N’s relationship with her mother.

1. The other part that I was referred to, was to the effect that Her Honour said at paragraph 75 that in Dr Q’s opinion the father was deeply affected by the belief that he had been cheated and betrayed by the mother in circumstances where he did not want the marriage to end and had great difficulty giving up his attachment to her and that Dr Q thought that the father was very agitated and pre-occupied by those matters.  The Court accepted that that was the case.  Her Honour went on to say that a consequence may be that the father loses the ability to be able to see in a rational way what N’s needs are.

2. So there are some question marks about the extent to which the father is able to facilitate a close and continuing relationship between the children and the mother. 

3. The next matter to consider is the likely effect of any changes in the child’s circumstances including likely effect on the child of separation from either of their parents.  Obviously if the mother does not return, there will be some serious effects in terms of the opportunity for N and S to have a relationship with their father.

4. The next matter is the capacity of each of the parents to provide for the needs of the children including emotional and intellectual needs.  It is not a matter about which there is really evidence before me.  Except I am sure these were matters that were before her Honour and which I am sure her Honour made findings about. 

5. The only other is any other fact or circumstance that the Court thinks is relevant.  Mr Schonell in his submissions made a reference to the case of Kuebler and Kuebler (1978) FLC 90-434. In that case the Court set out the principles for consideration in applications such as this one. The first consideration was the length of the proposed stay out of the jurisdiction and I have referred to that. It is a fairly short holiday from Australia.

6. I have considered another of the matters referred to in Kuebler’s case.  This is the effect on children of any deprivation of access and I have referred to that matter in the context of N and indicated she is with her dad this week and that what the mother proposes would not deprive her of time with him.

7. The case also refers to the bona fides of the application.  I have heard from the children’s mother in the witness stand.  She has assured the Court that her intention is to take her children and her mother on a holiday.  There is nothing to indicate in my view that she is not bona fide in that proposal.  Another matter which is referred to in Keubler’s case is any threat to the welfare of the child imposed by the circumstances of the proposed environment.  I am not aware of anything and I have not been taken to anything in respect of that which would cause concern.

8. Clearly, on the one hand the matters come down to a consideration of whether it is in the interests of the children to be permitted to be leaving Australia to enjoy what the mother proposes will be a holiday with all the positive aspects which would go along with that.  On the other hand, are those positives outweighed by a risk reasonably held that the mother would not return the children.  I do not accept, having heard the mother’s evidence about the allegations made by the father about the conversations and the alleged threats which she made to him, that such amounts to a reasonable basis for finding of serious risk that the mother would not return the children to Australia.  He has the onus of establishing those matters. 

9. I have had the opportunity to observe the mother giving that evidence.  I have the view that he has not established those matters on the appropriate standard.

10. The countervailing matters, those which would tend to indicate that the mother is more likely than not to return the children, are as follows. 

11. Firstly, she has assured this Court and the father that she will do so.  She has given assurances that what she proposes will be a holiday and not an abduction.  Australia is her home. She is the sole registered proprietor of the former matrimonial home.  She is the proprietor of her business in Sydney, which she has been operating for many years.  She has a trust account for money of various clients of hers in which there is deposited something like $1.5 million.  The children are Australian citizens and they have spent their lives in Australia.  They are both in schools – S at School 1, N at School 2.  The children are well settled in those schools.  These matters have been submitted in support of the mother’s case.  I draw the inference that she would not regard it as being in the interests of the children for them not to be returned to their schools.  Given the mother’s longstanding connection with Australia where she has lived since 1994, invested in a home and a business and has Australian children in Australian schools, the $20 000 surety in my view, really falls in well behind those matters in terms of considerations which would be more likely to draw her back to Australia and be a deterrent from any inclination to establish a home somewhere else in the world. 

12. But there are other relevant matters including the fact that Australia has arrangements with the United Kingdom for return of abducted children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.  The mother proposes to take the children to the United Kingdom.  Australia has similar arrangements with Greece.  The mother and the father met in Greece.  To some extent it might be said, although it has not been seriously submitted, that she has a connection with Greece.  Presumably her business involves her in some sort of networking with people in her industry in Greece.  And of course Australia has arrangements under the Convention with Poland.  This is really the only country other than Australia with which the mother has significant connection being the place of her birth.  Although the evidence indicates that although she has gone from time to time to Poland on holidays, her home has been very much in Australia.

13. In my view when one weighs those matters and looks realistically at those matters in making a determination and assessment of the risk involved, the positive aspects for these children being able to go on the holiday as proposed by their mother well outweigh the other matters which the Court has to consider.  In my view this Court must regard the best interests of these children as being served by what the mother proposes.  I shall put some orders in place to enable to the children to leave Australia for this purpose.

Costs 

1. In respect of the application by the mother for indemnity costs of the proceedings today, the usual position is that each party to proceedings shall pay his or her own costs. That is subject to the power given in s 117(2) of the Act for the Court to make a costs order if the Court considers it is just to do so upon consideration of the relevant matters in s 117(2A) of the Act.

2. The submission is really on the basis that the conduct of the applicant father in bringing the review and the fact that he has been unsuccessful now for the second time in opposing the order for permission to take the children overseas, really should carry with it an order for costs.

3. I was taken to the financial circumstances of each of the parties and there is no question of the financial circumstances of the children’s mother being considerably stronger than those of the father.  Just to provide some broad details of these, in her financial statement, the mother estimated her average weekly income at $3515 per week and her expenditure at $1210 a week.  Learned senior counsel updated estimates of moneys which the mother has in her accounts.  Her current statement of account is approximately $48 000.  She owns a property in Sydney which she estimates has a value of $800 000.

4. Her liabilities are considerable, being approximately $687 000.  The explanation provided for this is that following property orders which were made in the Federal Magistrates Court, the children’s mother has paid an amount of approximately $725 000 to the father by way of property settlement.

5. On the other hand, the father’s financial circumstances are, I am told today, that he is now in receipt of a Centrelink benefit which provides him $150 per week and his property consists of $330 000 in accounts.  Presumably that is as a consequence of moneys paid to him by the children’s mother following those property proceedings.  He pays rent of $350 a week.  He has a credit card liability which I am told is, at the present time, $20 000 which he is about to pay out of those funds which he has in the account.  Those funds in the account earn him a few hundred dollars a week in interest.  So in those circumstances his financial circumstances are clearly weaker than those of the children’s mother. 

6. The Court is asked to reserve the father’s costs of these proceedings to the hearing of the substantive proceedings.  I must say I am disinclined to do that.  These are really stand-alone proceedings.  In my view it would not be sensible for the Court simply to add to the other burdens that whoever the trial judge determining those other proceedings will have, various submissions about costs about events which, by the time those proceedings are heard, would then be a long time previously.  So in my view that is not an appropriate way to approach the matter. 

7. Bearing in mind the fact that the children’s father has been wholly unsuccessful in these proceedings, in my view this has become a highly relevant matter and it has become highly relevant in circumstances where during the first hearing the father was unsuccessful.  He determined that he would exercise his right to file a review and have the matter heard as an original hearing.  As was submitted by senior counsel for the mother, one of the parties to a hearing by a delegate is entitled to exercise their constitutional right to carry the matter further.  This is certainly what the children’s father has done and there is no criticism of him for doing that.  But it seems to me that it does become significant when on the second occasion a litigant is wholly unsuccessful in the application which they are putting to the Court so that the other party who would otherwise have had the fruits and benefit of their litigation has in fact been put to the expense of a rehearing.  That, in my view, is a significant matter.

8. Accordingly, notwithstanding the difference in the financial circumstances between the parties, which obviously is a significant matter, when one considers two unsuccessful applications, in my view the appropriate exercise of discretion is to make a costs order. 

9. Having said that, I am not persuaded that this is a matter where the Court would make an indemnity costs order.  I have been made aware that the wife has had to expend a very substantial amount in these proceedings in order to be able to obtain orders permitting her to take the children for an overseas holiday. 

10. In my view the appropriate order will be to the effect that the father pay the mother’s costs of today as agreed or assessed on a party/party basis. 

I certify that the preceding fifty-four (54) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 12 January 2012.

Associate:     

Date:              3 February 2012