Khal and Khal

[2007] FamCA 428

FAMILY COURT OF AUSTRALIA

KHAL & KHAL [2007] FamCA 428

FAMILY LAW - CHILDREN - With whom a child spends time - Application by father to take three children on holiday to Japan

Family Law Act 1975 (Cth)

APPLICANT: Mr Khal

RESPONDENT: Mrs Khal

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

FILE NUMBER: SYF 3764 of 2006

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 9 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Ms Hausman

SOLICITOR FOR THE RESPONDENT: York Family Law

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms Connor

Orders

1. Subject to orders 2, 3, 4, and 5 hereof, the children the elder son born in January 1996, the daughter born in December 1997, and the younger son born in June 1999 are permitted to leave the Commonwealth of Australia with their father between 24 June 2007 and 3 July 2007 to travel to Japan.

2. For the purpose specified in order 1, the mother is to deliver to the father the passport of the elder son and the father is permitted to have possession of the passports of the daughter and younger son when they issue. 

3. Not less than seven (7) days prior to his departure, the father is to hand to the solicitors for the mother the following documents:

   (a)a signed Memorandum of Transfer in relation to the whole of his interest in the property known as W, in the State of New South Wales; and

   (b)a signed authority enabling the wife solely to conduct transactions upon the joint account held with United Overseas Bank Limited Singapore, being account no. … .

4. The solicitors for the mother are to hold the documents referred to in order 3 in escrow to be released to the mother if the father fails to return the children to her in Australia on 3 July 2007. 

5. When the father returns the children to Australia the solicitors for the mother are to return the documents referred to in Order 3 to the solicitors for the father.

6. The mother is to deliver forthwith to the father any airline tickets and other travel documents related to the proposed trip to Japan booked prior to their separation presently in her possession or control and if she is unable to locate the tickets then she is to report the document missing or stolen to the New South Wales Police and thereafter provide to the father the event number of the police report. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3764  of 2006

Mr Khal

Applicant

And

Mrs Khal

Respondent

REASONS FOR JUDGMENT

1. There are three children at the centre of this interlocutory application: the elder son born in January 1996 (11); the daughter born in December 1997 (9); and younger son born in June 1999 (almost 8). 

2. Their parents separated in June 2006 and litigation followed soon after when the father filed an application on 31 August 2006 seeking certain parenting orders.  By her response filed 12 October, the mother sought different orders and introduced property proceedings.  Since then a number of orders have been made, but more relevant for present purposes are interim consent orders providing for the children to live week about between their parents during school terms and to spend half of each school holidays with each parent. 

3. The father (45) was born in Malaysia.  He became an Australian citizen in August last year.  He is a retired business executive and does some share trading and investment.  He occupies the family home at W. 

4. He proposes taking the children on a holiday to Japan, their mother opposes it, and he has brought these proceedings to have that dispute adjudicated. 

5. A holiday to Japan as a family had been planned and arranged several months prior to the separation and was scheduled to occur in January.  Skiing and Disneyland at Tokyo were part of the plans.  Tickets were acquired using frequent flyer points and charges of around $2,500 paid.  At the time the three children all had valid passports all were involved in the plans.  The father alleges that on separation the mother retained the travel documents [now not able to be located] and the children’s passports and birth certificates. 

6. The separation produced a turn not anticipated and, unsurprisingly, the children were disappointed to learn they would not be going to Disneyland.  Their father relates a discussion with them last August when they urged him to take them despite the changes within the family.  Rather than discuss their requests with their mother and ascertain her attitude, as he plainly ought to have done, he set about re-organising the itinerary and re-scheduling the arrangements to take place mid-year during the children’s school holidays.  This included the mother’s ticket.  Only then did he have a letter written to the mother through her solicitors advising of the revised plans and seeking her consent. 

7. Amongst other things, the letter pointed out that there is property here to secure the children’s return and it was suggested she may wish to travel to Japan around the same time so she can ensure the children board a return flight with her. 

8. The reply was not supportive.  The letter relayed her concern about the children leaving the country, pointed out he holds a Malaysian passport, and suggested he has the financial resources to remove the children without going through standard immigration points.  She drew no comfort from the fact there is a home here in Sydney and bank funds in Singapore and the loss of the frequent flyer points if the trip did not go ahead she regarded as inconsequential.  She declined to give her consent.  The whereabouts of the original air tickets loomed as a mystery. 

9. In the response from his solicitors he refuted any suggestion he would attempt to remove the children from Australia improperly.  He reiterated the proposition that she could use her ticket so as to supervise the children’s return and he asked for reconsideration, foreshadowing the possibility of some self executing order they might be able to agree upon.  This was followed by further correspondence between their solicitors, to no avail. 

10. In the case he put in his affidavit, the father says the children are aware the holiday has been booked and when it is planned to travel.  They are very keen to go.  He has no plans to relocate from Australia and no intention of abducting the children.  He says he migrated to Australia in 1981 and is an Australian citizen [through his counsel it was said this occurred in August last year] which meant he was required to relinquish his Malaysian citizenship.  He says he has handed in his passport to the Immigration Department at Kuala Lumpar.  To further establish his connections to Australia, he points out that being one of 12 siblings he has a large family and four of his siblings live in Australia [the others are living in Singapore, Malaysia and North America].  He describes the children as being well settled in Australia, progressing well at school and with friends and interests.  By agreement they spend equal time with him and with their mother, and he says their unilateral removal from their home and surroundings and from their mother would be detrimental to their emotional development and would probably traumatize them for the rest of their lives.  He also says he recognises that if he did not return to Australia the financial consequences of the property proceedings concluding in his absence would be devastating for him.  He says the W home is worth about $3 million and is subject to a mortgage of $335,000 and there are joint savings of around $1.25 million in Singapore which neither can withdraw without the signature of the other.  He has no real estate outside Australia, though he does have investments in Singapore. 

11. In her affidavit the mother addresses these matters.  In particular, she alleges he has retained his Malaysian passport and not notified the Malaysian government he has Australian citizenship.  Her concerns are supported by suspicions aroused by his secretiveness and lack of frankness in several directions.  She alleges he failed to fully disclose his financial circumstances in a financial statement filed in the property proceedings - an interest in a family trust, shares and a superannuation entitlement.  She believes he tried to obtain copies of the children’s passports on the basis of incorrect information.  She also alleged he went to Japan recently, on business, and she became aware he made trips to Malaysia in August and October last year [not mentioned in his affidavit] and of a significant number of telephone calls to people in Malaysia.  This leads her to be concerned about arrangements being made to live in Malaysia.  She contends he has a large network of business associates in Malaysia, Singapore Indonesia and Japan, built up over the years they lived in Asia before their return to Australia in 2004, and she maintains he could find a senior position anywhere in the region with a salary of more than $1 million per annum.  She alleges his family has wealth and the assets here [the house is registered in his sole name] and in Singapore are a mere fraction of what he would be able to access from family resources and render insignificant the loss of the frequent flyer points and the money paid for the flight charges.  Moreover, she maintains he has not settled well in Australia and he has few friends and no hobbies.  She also alleges he is moody and controlling and threatening, including threats related to the children’s care, and he has been verbally abusive.  She concedes the children would be aware of the trip and be looking forward to it.  But as she sees it, the children do not need to travel at the present time, they have already lived overseas, and they have seen little of Australia.  She has made arrangements to take a 4WD trip with them in Central Australia during the upcoming holidays.  Finally, she points out that Malaysia and Japan are not signatories to the Hague Convention; hence, securing the children’s return from either country would be problematic. 

12. The father’s reply is a mixture of denials, explanations and further information.  He discussed his trip for 6 days to Japan in March 2007 with his neighbour and friend, Mr P and his wife, said to be a holiday and not a business trip.  An affidavit from Mr P supports this.  He proposed securing return with a signed transfer of his interest in the home and an authority to the mother to operate the Singapore account. 

13. In her submissions, counsel for the mother made a number of sound points underlining the mother’s concerns and anxiety which, it is acknowledged, may not resonate universally, but are genuine nonetheless.  Some emphasis was given to the fact that aspects of the father’s evidence were later revealed to be not as forthcoming or as open as it ought to have been; for example, neither he nor Mr P disclosed in their affidavits that the father had paid for the air fares and accommodation of Mr P and his wife and that only emerged later from interrogation about documents he had been asked to produce.  Nor was anything revealed about the father’s two trips to Malaysia last year [one was said to relate to his sister’s illness, a situation known to the mother] in circumstances where there is in place a co-parenting arrangement.  His rights about Malaysian citizenship are unclear and, on the mother’s version of events at least, he had made threats after separation about the children’s care [see paras. 20 and 21 of her affidavit].  As for the acknowledged views of the children, it is submitted they could not know the ramifications for them if their mother’s fears were to be realised.  Moreover, the offer of security is not of any sufficient substance because it is uncertain what could be done with the signed transfer given there is a registered mortgage and the existence of a line of credit against the account on which the father could draw renders the authority to operate of questionable value.  The risk of non-return may be regarded as small, slight or even remote, but it has to be balanced against the consequences of the mother’s fears being realised.  Absent any compelling reason for the trip, the issue should be approached with caution and the father’s application dismissed. 

14. Amongst his submissions, counsel for the father says there had been no challenge to the truth of what the father had said in a number of important respects and, for example, his evidence that he had surrendered his Malaysian passport could be accepted, it could also be accepted that he had used his Australian passport to travel to Malaysia and Japan, and that he is no longer entitled to Malaysian citizenship having relinquished it on becoming an Australian citizen.  The mother had brought no evidence to support her concerns about these matters and they should be evaluated in that light.  The father has attempted to address her concerns with the security offered and he is also prepared to surrender the children’s passports on arrival in Japan either to the mother [should she use her ticket to travel there around that time] or to someone else such as an Australian consular official.  The risk of non-return is merely hypothetical, there is nothing to indicate he has embarked on a course to abduct the children, the trip was planned at a time when it was agreed it would benefit the children, and the mother’s concerns are indicative of her paranoia rather than reflective of risk of abduction.  Finally, it is pointed out that there is no evidence the father has sought to interfere with the mother’s time with the children and to this point the orders made in the pending litigation have been by consent. 

15. The balance of these positions is quite a fine one. 

16. The disastrous consequences for children of being spirited away from another parent and the cost, financially and emotionally, for all concerned in dealing with such an insensitive decision cannot be underestimated.  Whatever the motivation in the mind of those who take and implement these decisions, it may be they see the children as needing to be ‘rescued’ from some situation imposed by the other parent, whether real or misguided, or the decision may conceivably be bound up with their determination to prevail in the children’s upbringing by controlling their values and environment to the exclusion of the other parent.  Here, it is probable things have been said about the children’s care, but that has to be kept in perspective.  In the evidence I have read there is nothing to indicate either parent sees the other as anything other than a loving parent, whatever the state of their own relationship, and that can be inferred from their recent consent to a week about arrangement, though obviously there are not insignificant differences between them in their approach to putting in place the arrangement best suited to the children in the longer term, apparent from the parenting proceedings still continuing.  So whatever might have been said at an earlier time, there has been agreement about the children’s care arrangements, at least in the interim, and there is nothing to suggest any dissatisfaction or obstruction surrounding those arrangements as an interim measure.  At the same time, it is recognised that situations such as the mother fears are obviously not predictable, as experience teaches. 

17. The way the father has gone about furthering the travel plan is hardly a model of co-parenting because plainly he took no step to consult with the children’s mother before involving them and changing the travel arrangements to accord with his own decision.  Having done so, he then had the letter of 10 January written to her presenting what was effectively a fait accompli save for her consent, a not inconsequential component in a decision such as this.  It is hardly surprising that she should express concerns when she has been brought into the loop at that stage.  That said, it is recognised that the trip to Japan, which is the proposal, has not been conjured out of the blue; it was a family plan before the separation. 

18. It is also recognised that there may be flaws in the financial security on offer from the father, including the possibility that a draw could be made on the line of credit ‘linked to’ the savings in Singapore thereby reducing or eradicating the available balance, though it is not clear if the line of credit can be drawn solely by one party without the other’s approval.  The proposal about the children’s passports being relinquished on arrival in Japan strikes me as no real security at all because of obvious problems with enforceability in the face of the father’s non-compliance.  On the other hand, that he has offered to allow the mother to hold the signed transfer of title to the W house and the authority to operate the Singapore account, as well as making the proposal about the children’s passports, is indicative at least, though not conclusive, of his bona fides. 

19. The mother’s concerns about non-return are an important consideration.  Obviously they are not limited to non-return from Japan but the possibility the father would travel from there to Malaysia where, conceivably, he could resuscitate his right to citizenship, find remunerative employment, and remain there with the children.  Malaysia not being a signatory to the Hague convention, that scenario would present significant obstacles to be overcome.  Of course it would be unthinkable that she would be denied the immediate transfer of the family home and entitled to the Singapore funds [whatever they might be] in bringing the property proceedings to a swift end in that event, but no doubt that would be little consolation in her efforts to have the children returned to Australia.  Refusal to allow the children to be taken on the trip weighs heavily when that scenario is contemplated.  And it is easy to conjure because, theoretically at least, it is not fanciful.  That said, if the mere presence of risk were all that were necessary, refusal would be the inevitable result.  That is because there must always be risk involved in applications where the dispute relates to the international movement of children; those intent on doing harm are not going to declare their hand and covering their tracks is a component of the cunning plan.  But the level of risk has to be evaluated in light of known factors and that includes consideration of arguments supporting the application. 

20. I have put the mother’s concerns, which I regard as important, and the arguments put in her case on the scales, but ultimately it is my view that the application should succeed.  The involvement of the children without first consulting their mother and obtaining her consent to the revised arrangement is not condoned.  But if the inclination to refuse it for that reason is resisted, then it is my assessment there are sufficient factors to tip the balance in favour of the children going.  They are of what might be called a ‘capable’ age; they are looking forward to it; it was something planned prior to separation and therefore can be confidently seen as something both parents wanted them to experience, though admittedly in different circumstances; there is financial security on offer; and in the final analysis there is nothing sufficiently concrete in what has been presented to depreciate the father’s apparent bona fides. 

21. The orders set out the conditions attaching to the children’s departure. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  11 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KHAL & KHAL