Hyde & Minhas
[2022] FedCFamC1F 758
•4 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Hyde & Minhas [2022] FedCFamC1F 758
File number(s): PAC 1205 of 2019 Judgment of: BRASCH J Date of judgment: 4 October 2022 Catchwords: FAMILY LAW – PARENTING – Where the mother sought orders for international travel with the child – Where there was no specific proposal for international travel – Where travel was opposed by the paternal uncle and grandfather –Where the mother has few ties to Australia – Where Line & Line (1997) FLC 92-729 followed – Where orders were made restraining the mother from taking the child out of the Commonwealth. Legislation: Family Law Act 1975 (Cth) Part 7, ss 60B, 60CC, 60CC(3)
Hague Convention on the Civil Aspects of International Child Abduction
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Line & Line (1997) FLC 92-729; (1996) 21 Fam LR 259 Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 4 October 2022 Place: Parramatta Counsel for the Applicant and Second Respondent: Mr O’Brien Solicitor for the Applicant and Second Respondent: Circle Bridge Legal The First Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Yu Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 1205 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HYDE
Applicant
AND: MS MINHAS
First Respondent
MR B HYDE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
4 OCTOBER 2022
THE COURT ORDERS:
1.That the mother, her servants and/or agents are hereby restrained by injunction from removing the child, X born in 2015 from the Commonwealth of Australia, and to facilitate this orders:
(a)The marshal and all officers of the Australian Federal Police and the police forces of the Various states and territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child, X born in 2015, on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and child’s name on the watch list until further order of the child turning 18 years of age.
THE COURT NOTES THAT:
A.Nothing in this Order, and nothing I have said, prevents the mother from bringing an application to the court should she have a specific proposal for overseas travel.
B.The complete set of orders were made on 4 October 2022.
C.The above Order only relates to the issue that was in dispute and required determination.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hyde & Minhas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These reasons have been taken from the transcript, corrected only for grammar and to make spoken words more amendable to reading.
X was born in 2015. He is plainly much loved by his mother, by his uncle, by his grandfather and I have no doubt, by his father.
The matter came before me for a two to three day trial on parenting issues.
The parties, to their very great credit, managed to resolve the live with and time with orders as well as some injunctions. What is outstanding for my final determination today is the travel arrangements that are proposed by the parties for X. Given the narrow, yet important nature of the dispute, I will not give a detailed background of this matter.
Equally, given the discrete but important nature of the dispute I will not go into considerable detail of Part 7 of the Family Law Act1975 (Cth) (“the Act”). It is important though that I give some background.
The applicant in this matter is the paternal uncle, namely Mr Hyde, born in 1974.
The mother in this matter, the respondent, was born in 1980 and her husband was born in 1971. The paternal grandfather, who is also a party in this matter, was born in 1938.
In early 2013, the mother and the father married. They had met in about mid-2012 in Country C where the mother had been visiting her brother and uncle.
The mother studied at a university in Country D and worked as a teacher for three years before having met the man who would become her husband.
After the parties married in 2013 it took about a year for the mother’s visa application to be accepted and when it was, she travelled to Australia to be with Mr E.
Mr E and the mother lived at his parents’ residence, although she describes it as separate living quarters.
As said, X was born in 2015. Tragically, Mr E was shot in early 2016. Following Mr E’s passing, the mother remained living at her in-laws home. I could only imagine the trauma that everyone in the family went through: the mother, the paternal uncle and the paternal grandfather (and I suspect the woman up the back is the paternal grandmother). I can only but imagine the trauma you all went through.
In 2016, and again in 2017, the paternal family effectively sponsored or otherwise allowed the mother to return to Country D with X. Ironically, the mother did not actually need their approval; nevertheless, it was good of the mother to keep the paternal family in her plans.
When the mother returned to Australia in late 2017, she resumed living with the paternal grandparents.
It was common ground that sometime after that, specifically in early 2018, the now applicant and the mother entered into a religious marriage. There was a dispute about the purpose of that marriage, but it does not matter for the purpose of the dispute before me that I need to determine. It may well be that the religious marriage occurred in Country D, but again little turns on that.
After their marriage (the applicant and the mother’s religious marriage), X and the mother moved in with the applicant at his Suburb F home. It seemed common ground that whatever might have been the nature of their relationship, that living under the one roof really only lasted from March to May 2018.
On or about 23 May 2018 the applicant paternal uncle and the mother separated.
X’s best interests are my paramount consideration.
The objects and the principles of the Act are found at s 60B and I have kept those in mind when I deliberated on this matter.
Section 60CC has two primary considerations, the essence of which is X should have a meaningful relationship with the people around him so long as that is safe.
Section 60CC(3) then sets out a range of additional considerations I have to take into account.
They include, but are not limited to, a child’s background including lifestyle, culture and traditions. X is blessed to be growing up with the influence of two proud and rich cultures; his Country D culture and his Country C culture.
Finally, on an overview of the law, I am not required to give reasons or engage with every single submission that was made before me this afternoon, but I do take everything that has been said into account.
I now turn to the specific dispute that is before me.
The orders sought by the paternal uncle and paternal grandfather
The applicant paternal uncle (who is supported by the second respondent paternal grandfather) proposed orders that X’s name remain on the airport watch list until he turns 18. They do not seek any orders for overseas travel for themselves to take X overseas.
The orders sought by the ICL
Even though the paternal uncle and paternal grandfather did not seek orders to travel for themselves, the ICL nevertheless proposed overseas travel orders that any party could essentially travel whenever they wanted to and for as long as any of the parties wanted. The only fetters on travel were that travel for any party was not be to a country that was subject to a ‘do not travel' warning by the Australian government.
Belatedly, this afternoon, an oral amendment was made to the [ICL’s] minute of order that travel not be to a non-Hague Convention country. The Hague Convention of course being the Hague Convention on the Civil Aspects of International Child Abduction.
The orders sought by the mother
The mother’s overseas travel order was to have the overseas watch list removed. The mother told me she has no intention to travel to Country D.
Decisions such as Line & Line (1997) FLC 92-729 (“Line”) identify the matters that I must consider when looking at the competing proposals.
They include whether a surety had been offered. In oral submissions, the mother said she would provide a surety, but I have no order in front of me to that effect.
I also must look at the kinds of matters that are set out at paragraphs 4.48 to 4.51 of that [Line] decision. They include the risk of the departing parent leaving and, despite assurances, not returning. In assessing the degree of risk, the obvious considerations are the existence, or not, of the ties of the departing parent to Australia. For example, the ownership of real estate, business interests and close family and friends.
I must also consider the existence and strength of possible motives not to return, and I include in that, the level of conflict between the parties particularly over child related issues.
I must also consider the existence and strength of possible motives to remain in another country, such as the ownership of real estate, business interests and family in that other country.
I pause here to note the mother’s application to travel is essentially at-large. It is not an application to go to a specific country and/or for a specific purpose.
The decision in Line also tells me that an important matter to consider is whether the country is a signatory to the Convention on the Civil Aspects of International Child Abduction, the Hague Convention. But that said, I have to keep in mind that a party may tell the Court or seek permission to go to a Hague country but, then, use that as a launching pad to go to a non-Hague country.
Finally, no surety is actually on offer here or any details of one, other than the mother simply saying she would provide one.
Had one been actually offered, I would have looked at the financial circumstances of all of the parties and considered any hardship, which the departing parent would suffer from the imposition of a surety at a particular level, with the hardship the other party would suffer if the surety was set at a lower level. The whole point of a surety is to provide a sum that would entice the removing person to bring the child/ren back, but equally to provide a sum to the party left in Australia to take action to endeavour to obtain the return of the child.
I now turn to the parties’ submissions.
The ICL’s submissions
First, turning to the ICL, it was her submission that the risk of the mother going to a non-Hague country would be overcome if an order were made enjoining the mother from going to a non-Hague country. I do not accept that. I have already referred to the decision of Line which indicates I must give thought to [a party] going to a Hague country, only to go to a non-Hague country.
The next submission was the mother said she would return. I note that people who want to travel overseas say they will return but that does not mean that they will.
It was said X was at school. That is true, but nothing really turns on that.
I was taken to that part of the mother’s affidavit where she said that she is going to buy a property and recently received some funds. When I look at the mother’s ties to Australia, really the best I have is hopes and plans, but nothing concrete. It was also submitted for the ICL that the mother has plans for the future [in Australia]. That might be so, but I have already referred to the future.
Finally, it was said that the time with orders were some carrot for compliance to come back. I do not accept that to be so. As I said, if a party is going to take a child overseas contrary to orders, then contravening an order is the last thing that will deter them.
I will not make the orders proposed by the ICL. For a start the paternal uncle and grandfather do not want travel orders, even though the ICL continued proposing one. I am also not satisfied an injunction about ‘do not travel’ countries or not going to non-Hague Convention countries solves the matter. I have referred to Line where I must consider that the Hague country is simply a springboard to elsewhere.
I am also not prepared to make overseas travel orders which do not have any limits to time away, or when time overseas might occur. I am also not prepared to put the parties in the position where one party could effectively say they would have all the holidays and are going overseas.
I will not make those orders. I note neither the mother nor the other parties supported them in any event.
Paternal uncle and grandfather’s submissions
The submissions made on behalf of the paternal family were essentially these: no surety had in fact been offered, therefore, I was taken to para 4.48 of Line and those considerations at (a) and (b) were not ones I was able to consider; the mother’s ties to Australia were about six years in duration; she is not employed here; has not requalified; has no partner in Australia; that in her material she referred to struggling to connect to the community; and, she has no actual real estate or business in Australia.
It was also submitted that the $330,000 odd the mother recently received could just as easily be used to purchase a property here, but also to travel overseas and not come back. The mother spoke in her material about maybe going to Country G or Country H but there were no definite plans put on by her.
It was also said the paternal family’s suspicions were raised because the mother always sought the airport watch to be lifted, even when she had no overseas travel plans.
It was also said to me that: the mother has long lived in Country D; she has a brother there; and, the maternal family would be welcome to come to Australia.
The mother’s submissions
I turn now to the mother’s submissions, which I must say were very thoughtful and eloquent.
The mother said she is going to buy a property in Australia and that she was prepared to provide a surety. She also said she did not understand the paternal family’s opposition when she returned X from Country D in 2016 and 2017. I pause here to note though that that was before the relationships seemed to sour after the religious marriage with the paternal uncle in 2018.
The mother said she had been busy here, and I have no reason to doubt that, studying English and doing a TAFE course so she can teach J Language. She is looking for a job here; she is now an Australian citizen; and, she would not want to take X to Country D because it was not safe.
The mother said she has no assets or property in Country D and she very much wanted X to see family, her sister and brother, in Country G and Country K. It was explained to me why her sister, who seemed to be a refugee in Country G, could not currently come to Australia.
I am not prepared to make the orders sought by the mother.
I have no doubt that the mother wants to travel, but my consideration is wider and it is that of X. What troubled me the most was the open-ended nature of the order that the mother sought. By open-ended I mean there is no specific plan, no particular length of time that was proposed by her.
I am also concerned about the mother’s very few ties to Australia and, despite her assurances, I am concerned that on the orders she seeks it would be open to her to not return to Australia.
This is also a matter that has been marred by conflict between the parties and, on the orders the mother sought, if she had disagreement with the paternal family there would be nothing stopping her from up and leaving.
The mother is from Country D and it is not a member of the Hague Convention. It is also not signatory to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”).
In short, as I asked counsel for ICL a number of times, if I granted the order the mother sought then all I had was hope that she would come back [with X].
For the reasons I have given I will make the order sought by the paternal uncle and grandfather at their [proposed order] 5 and 5.1. I will not make the order proposed by the ICL as I have said, and I will not remove the watch list.
However, I will make a notation that nothing in this Order, and nothing I have said, prevents the mother from bringing an application to the court should she have a specific plan, for the court to consider if people do not agree, or put obstacles in the way. Then the court can consider a specific plan, as opposed to something that is a little bit more abstract right now.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 4 October 2022
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