HRS & HRK
[2005] FMCAfam 548
•26 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HRS & HRK | [2005] FMCAfam 548 |
| FAMILY LAW – Children – application to remove children from the Commonwealth for the purpose of a holiday to India – issue of passports. |
| Family Law Act 1975 (Cth) |
| Bright and Bright v Bright and Mackley (1995) FLC 92-570 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 |
| Applicant: | R S H |
| Respondent: | R K H |
| File Number: | BRM 15015 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 August 2005 |
| Date of Last Submission: | 26 August 2005 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 26 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Grainger |
| Solicitors for the Respondent: | Mr Abbott G.L. Abbott & Co |
ORDERS
The orders made by the Local Court of New South Wales, Coffs Harbour, on 17 November 2004 are suspended.
The mother is permitted to take the children A S H born 12 April 1998 and N S H born 13 October 2000 out of Australia between 9 December 2005 and 20 January 2006.
The mother is permitted to take the said children to India by way of Singapore for the purpose of a holiday in India.
The mother must return both of the said children to Australia by
11.55pm on 20 January 2006.
That prior to the children leaving Australia during the times provided for in Order 2 and no later than 14 days prior to any departure date the mother must provide copies of any intended itinerary and evidence of return travel arrangements for herself and the children in writing to the father's solicitor.
Pursuant to s. 7A(2) of the Passport Act the said children A S H and N S H are to be issued with Australian passports, notwithstanding the fact that the consent of the applicant father for the issue of the passport for the said children has not been obtained.
That within seven days of the return to Australia of the mother and the said children the mother must deposit the children's passports with the Registrar of the Federal Magistrates Court at Brisbane and neither party may collect those passports without the written consent of both parties or further order of the Court.
The Australian Federal Police are requested to remove the names of the said children from the Airport Watch List in force at all points of departure from Australia between 8 December 2005 and
21 January 2006.
The mother is to do all things necessary to cause the sum of $5,000.00 to be deposited with the Registrar of the Federal Magistrates Court at Brisbane no later than 2 December 2005.
The Registrar is to hold the said sum of $5,000.00 on trust for the parties pending the safe return of the children to Australia, but subject to any further order of the Court or the receipt of both parties as to the disbursement of the said sum.
That Order 6B(2) made by consent on 7 December 2004 at the Local Court of New South Wales at Coffs Harbour is suspended between
9 December 2005 and 22 January 2006.
That the mother is to provide to the father a telephone number where the children may be contacted in India and permit the children to speak to the father or the paternal grandparents on the telephone on two occasions each week whilst the children are in India.
Liberty to either party to apply in respect of any issue on seven days notice.
The matter is listed for final hearing at the sittings of the Federal Magistrates Court at Coffs Harbour during the week of
21-25 November 2005.
The applicants to pay the setting-down fee or obtain a waiver of that fee no later than 31 October 2005.
The parties are to file and serve all further material upon which they seek to rely by 4.00pm 31 October 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
BRM 15015 of 2005
| R S H |
Applicant
And
| R K H |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the mother of two children, two little boys called A who was born on 12th April 1998 and N who was born on 13th October 2000 to take them out of Australia for the purpose of a holiday in India. The mother seeks that the children be taken to India by way of Singapore from about
15th November 2005 until the conclusion of the Queensland school holidays, which would be 22nd January 2006.
The children are currently living with the mother and they live in B. The father still lives in W in the State of
New South Wales. The parties are of Indian origin and the mother in fact travelled out from India to marry the father. The father himself has visited India for a period of about three months comparatively recently.
The paternal grandparents seek to be joined as parties, as they too have an interest in these proceedings. The father himself, I note from one of the affidavits is under a form of disability in that in so far as property proceedings between the parents are concerned the father's affairs are being looked after by the Public Guardian in Q. This relates to a diagnosis of schizophrenia as far as the father is concerned.
What the mother wishes to do is take the children to India because her parents who had emigrated from Canada have returned to India for a period of time at least so that they can be near the mother's grandmother, who is the children's great-grandmother. That lady has reached the age of 95 and the mother says that she is unable to travel and it would be desirable for the children to get to know their
great-grandmother whilst she is still around. It would also be desirable for them to spend some time with their grandparents, although they have had contact with their grandparents comparatively recently. The third reason that the mother gives is that her desire is to get out of Australia and have a holiday for a little while back in India because events of recent months have been somewhat stressful to her.
The father, with the support of his parents, says that there is no reason why the mother should not return to India for a holiday if she wishes to do so. They object, however, to any proposal that the mother should take the children out of Australia and take them in India.
The reasons given to oppose such a proposal are several. First, that India is not a party to The Hague Convention. Thus if the mother were to decide to stay in India and leave the children with her in India that it would be difficult for the father to secure their return to Australia. Second, the father is concerned that the mother's parents and family ties are largely in Canada. Whilst Canada is a party to The Hague Convention the father fears that the mother may be using this holiday as a cloak to disguise her ultimate intention to relocate to Canada with the children, which would defeat the wishes of the father and the paternal grandparents to have contact with the children.
The suggestion is that the mother could remain in India with the children long enough so as to defeat any application brought by the father in Canada for the return of the children because of apparent statutory time limits.
The father's solicitor, Mr Abbott, who has a strong knowledge of the Sikh community in W, New South Wales, indicates that it is not difficult for people when in India either to obtain an extension to a three month visa or to obtain a visa to travel to Canada.
The father and his parents raise two other issues. First, they doubt that it is of value to the children to visit India at this stage as they are still comparatively young. The older boy is still only seven years of age and whilst India is the country from where his mother comes that it would not be of much benefit to him and certainly not to his younger brother they say to visit India to learn about the Sikh culture. They can do that in W where it is well-known that the Sikh culture is alive and well and certain well-observed by the many people who live there.
They are also concerned about the age of the children and especially the concerns about the children acquiring an illness whilst they are in India. They say that India is a large, populous nation, but in some areas the water supply is not perhaps as safe as that which obtains here in Australia. There are also certain illnesses which are more prevalent in India than in Australia and that it is generally unwise to take young Australian born children or young children who have lived in Australia to a country like India for any length of time because of the danger of illness.
They raise too the difficulty of deprivation of contact with the father and the paternal grandparents and finally take objection to the length of the proposed trip. The suggestion by the mother that the children would be away from 15 November until 22 January would have the children out of Australia for more than two months. It would involve the older boy missing several weeks of school although the younger boy is still at pre-school.
The concern too as raised by Mr Abbott is a practical one of the children not being brought back to Australia until 22 January, which is the day that school holidays come to an end, school term starts and if the children had travelled on two seven hour plane flights that they would have been in the air for 14 hours and travelled for a lot longer, they would have changed time zones, they would be fatigued and perhaps suffering from some form of jet lag, to use the colloquial phrase.
These are the concerns addressed or referred to by the father and his parents. Against this Mr Grainger for the mother points out that the mother is not a citizen of India any longer, that she became an Australian citizen at a time when she had to relinquish her Indian citizenship and so that she is a citizen of Australia. The children are Australian citizens. He says that his client has no wish to live permanently back in India, he says his client wishes to live permanently in Australia. Mr Abbott for the father, of course, pointed out that people from the Punjab had two destinations of choice if they left India - either Australia or Canada.
The mother says she has some family in Australia, indeed in B, although concedes that she has other family, including sisters in Canada. She concedes that her parents have had some contact with the children, but is of the view that it would be good for the children to see the grandparents in India and points out that it would be desirable for them to meet their great-grandmother and one can take judicial notice of the fact that a person aged 95 would be unlikely to have a lengthy future life expectancy. This great-grandmother cannot travel. At the age of 95 it is not difficult to see why that would be. The mother herself points out that the father left Australia and spent three months in India comparatively recently. During that time she says that he only telephoned on about one or two occasions.
The reasons seem to me to be to some extent driven by the paternal grandparents who are settled in Australia, happily settled in Australia and a concern that this may in fact be a way for the mother to seek to take away from Australia the grandchildren who are very dear to them.
The law in these matters is set out in two authorities which I propose to follow. First, there is the decision of the Full Court of the Family Court of Australia in the matter of Kuebler v Kuebler (1978) FLC
90-434. Mr Abbott for the father in fact referred me to the decision in Kuebler (supra). In that matter the Full Court set out the factors that should be considered in applications to take children out of the jurisdiction. There are five.
a)The length of the proposed stay out of the jurisdiction.
b)The bona fides of the application.
c)The effect on the child of any deprivation of contact.
d)Any threats to the welfare of the child by the circumstances of the proposed environment.
e)The degree of satisfaction which the Court has in its assessment of the parties and their promise to return to the jurisdiction.
I am mindful also of the decision of the Full Court of the Family Court of Australia in the decision of Line v Line (1997) FLC 92-729.
That case dealt with the fixing of an appropriate level of security for the return of children to Australia. There were four principles that the Court set out.
a)The purpose of the security. To provide a sum to realistically entice the person removing the child to return and to adequately provision the party remaining in Australia to take action for the return of the children.
b)The degree of risk that the departing parent will not return.
c)Whether the country of travel is a signatory to The Hague Convention on child abduction and the likelihood of deviation to a non-Convention country.
d)The financial circumstances of both parties and any hardship to either party if the level of security was increased or decreased.
Those are the principles that I must consider.
First of all, the length of stay out of Australia is a period in excess of six months. True it is that Mr Grainger for the mother has said that that period of time is flexible, but I am mindful of the fact that the period mentioned in the application is from 15 November 2005 until
22 January 2006, the conclusion of the Queensland Christmas school holidays.
There is I note some force to the point made by Mr Abbott for the father of the need for children to have a reasonable time after travelling in order to overcome the fatigue and other symptoms involved with long distance travelling before they go back to school. The fact that the proposed dates would take the older child A out of school for a good three weeks was a matter to which Mr Abbott referred the Court and it was a matter of some concern. In my view there is force to that argument and it does not seem to me to be necessarily in the best interests of the child to be out of school for that period of time.
The proposed length of stay also, as Mr Abbott pointed out, would deprive the children of contact with the paternal side of their family and that is a matter that I must take into account.
I look at the affect on the children of the deprivation of contact with their father and their paternal grandparents. The evidence appears to be that the children have a good relationship with these people and that the good relationship is reciprocated and it would be beneficial for those relationships to remain on foot. Certainly a lengthy stay out of Australia would not assist the children as far as the relationship with that side of the family is concerned.
I do look at any threats to the welfare of the children by the circumstances of the trip overseas. Certainly India is a big and vibrant country and there are concerns about health. There has been some degree of civil unrest in parts of India, but I am of the view that the mother, who is herself of Indian descent even though no longer a citizen of that country, should be able to take reasonable precautions to ensure the children's health and safety.
It also appears to me that provided that the Court were to impose a realistic security deposit that the mother's promise of return to Australia is one which would be likely to be kept. She is an Australian citizen, her children are Australian citizens. She does have ties to this community and has expressed the view that she wishes the children to be brought up and educated in Australia. She did after all emigrate to Australia when she was going to get married and she has chosen to live in the city of B, which is a large and modern city in Australia which offers all amenities to young families. I am not satisfied that there has been shown a large degree of unlikelihood that the mother would choose not to return to Australia.
The mother wishes to obtain a passport for the children and the orders that are sought would require for the father to execute a passport application or, failing that, that the Registrar would do it. I am not of the view that the father would be at all happy to execute any documentation which would allow the children to have a passport based on his fervent opposition.
I am of the view that there are grounds for setting a security deposit.
It should be in such a sum that it should persuade the mother that there would be a need for her to return with the children and to return on time. It should not be set at such a level that it would be impossible to meet. I am of the view that the proposed journey outside Australia, whilst in principle beneficial to the children, is unnecessarily long and I do not see why it should be outside the scope of the school holiday period. It is a lengthy school holiday, they are young children and to my mind the length of the holiday is unnecessarily long.
It is of benefit to the children to get to know their great-grandmother and it is of benefit to the children that just as they have a good relationship with their paternal grandparents that they should have a good relationship with their maternal grandparents. And if, at least for the time being, their maternal grandparents are in India rather than Canada I am of the belief that it is of benefit to the children to spend some time with them.
The Family Court in the decision of Bright and Bright v Bright and Mackley (1995) FLC 92-570 has spoken of the advantages to children of being aware of their place in an extended family and the children's place in their mother's extended family is psychologically as important to them as their awareness of their place in their father's extended family.
I have referred to the degree of risk if the departing parent would not return. I am of a view that the risk that the mother would not return to Australia is relatively low. I am mindful of the fact that India is not a signatory to The Hague Convention on child abduction, but I do not see it as a situation that the children would stay in India for 12 months or so with the father not being able to do anything about it. The risk that the mother would eventually take the children from India, which is not a signatory to The Hague Convention, to Canada, which is a signatory, does not seem to me to be a risk of great consequence.
The argument also that the children can get all of the Sikh culture that they need in the town of W, New South Wales, rather than in Mother India itself is an argument that I do not find convincing.
I am of the view that whilst the proposed trip out of Australia is lengthier than the Court would allow that there are grounds in the children's best interest for the children to be issued with Australian passports and to be permitted to accompany their mother on a visit to India for a reasonable period of time. There must be the facility for the children to speak to their father or their paternal grandparents on the telephone on a regular basis and of course that in itself would act as some form of an early warning system if the mother were planning to act contrary to these orders.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 12 October 2005
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