KOYROYSHS & KOYROYSHS

[2016] FamCA 1046

FAMILY COURT OF AUSTRALIA

KOYROYSHS & KOYROYSHS [2016] FamCA 1046

FAMILY LAW – CHILDREN – Overseas travel – Non Hague country – Parenting

APPLICANT: Mr Koyroyshs

RESPONDENT: Ms Koyroyshs

FILE NUMBER: SYC 2276 of 2016

DATE DELIVERED: 7 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Longton Legal

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. Until further order in these proceedings the mother and father are restrained from causing, permitting or allowing the child B (the child) born … 2015 to be removed from the Commonwealth of Australia.

2. It is requested that the Australian Federal Police give effect to this order by placing B on the Family Law Watch List and maintaining her name on the watch list pending further order.

3. Until further order B shall live with her mother except for when she is living with her father as provided for in these orders.

4. The child shall live with her father:

   (a)      Each Tuesday, Thursday and alternate Sunday (the first alternate         Sunday           being 18 December 2016) from 10:00am until 5:00pm.

   (b)      As otherwise agreed in writing.

5. The parties are each to make the child available for change over at the police station closest to the mother’s residence unless otherwise agreed by the parties in writing.

6. The proceedings are to be referred to the docket Registrar for further mention on a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Koyroyshs & Koyroyshs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 2276 of 2016

Mr Koyroyshs

Applicant

And

Ms Koyroyshs

Respondent

REASONS FOR JUDGMENT

1. The parents who separated on 25 March 2016 have one child, the child (born in 2015) who is almost two years old.  The current interim proceedings relate to two matters concerning the child.  The first is whether the mother, who was born in Country D and who has her family in Country D, is able to take the child to visit Country D.  In relation to this the father asserts that there is a risk that the mother will not bring the child back to Australia.  The second matter involves the time that the father is to spend with the child.  At present he is seeing the child for five afternoons per fortnight for a period of four hours on each occasion.  He asks that the number of times he sees the child each week be increased, that the time on each occasion be increased and that from about March of 2017 that he start to have some overnight time with her.  This is opposed by the mother.

Travel to Country D

1. The mother seeks orders (exhibit M1) that will permit her to travel to Country D with the child no more than two times per year.  On her application the travel would be contingent on her complying with a number of conditions regarding providing the father with the information about the travel, but also for a sum of approximately $200,000 that is currently held in her solicitor’s trust account to be held as security for her travel. 

2. A number of factors were identified by each of the parties that bear upon the question of the proposed travel.  The critical issue focused upon by each of them was the question of risk that the mother may remain in Country D and retain the child with her. 

3. In identifying a risk that the mother might not return, the father relied heavily upon matters contained at paragraphs 39 and 54 of his affidavit affirmed 13 April 2016.  In short, not long after the parties separated, the father says conversations occurred with the mother in which she identified that she intended to return to Country D with the child and to remain living there. Further, the father says that she told him that if he agreed to such a course she would cause him to be paid a sum of $485,000 that was then in her control.   It is notable that the father’s account of these conversations was not challenged by the mother, even though her affidavit in support of her response was sworn 6 July 2016. 

4. The father further asserted other factors that identified the mother as being at risk of remaining in Country D should she leave Australia.  The first of those was the assertion that the mother had resigned from her workplace.  This assertion was later retracted on the basis that the mother’s evidence is that she is simply on a leave of absence from her work and due to return in 2017.  That leave of absence on her account was made necessary in order to have appropriate care arrangements for the child. 

5. The second matter put forward was that the wife had sold her real estate and hence was not bound to Australia by virtue of owning real estate here.  The sale of the real estate was said to indicate a risk that the mother was preparing to relocate to Country D. 

6. The proceeds of the sale are currently held in the mother’s lawyers controlled money account and the mother is unable to access those funds.

7. The father pointed to restrictions in his time with the child that have been imposed by the mother and by her resort to police in circumstances that did not justify their involvement.  The upshot of these last two matters he says is that they demonstrate that the mother has poor respect for his role as a father and, accordingly, a concern for his role as father is not a factor that is likely to bring her back to Australia. 

8. Against this, the mother has been an Australian citizen since about 2010 and has lived in Australia since about 2005 or 2006.  She says that she will return to Australia if she is permitted to travel to Country D.  She further notes that shortly after separation she had control of approximately $465,000, yet did not take the opportunity to flee to Country D.

9. The father further pointed to exhibit F3, a statement for the wife’s Westpac Altitude Black Mastercard account that showed that on 11 April 2016 the mother had made a purchase in relation to China Eastern Airlines in the sum of approximately $1,650.  The timing of this, being closely proximate to the conversations that he had deposed to with the mother indicated, he said, a risk that the mother was planning to travel to Country D.  The mother subsequently produced exhibit M3 that indicated that the purchase was in relation to a ticket for her mother.  It was then said for the mother that the assertion made by the father that the mother was purchasing a ticket for herself to travel to Country D demonstrated an irrational.  In the context of the unchallenged conversations between the father and the mother I am not prepared to find that his concern, prior to being shown that the ticket was purchased for the maternal grandmother, could be said to be irrational.  The purchase of the ticket for the grandmother certainly removed from the assessment of risk the idea that the mother had made a purchase of a ticket for herself to travel to Country D. 

10. The mother pointed to the fact that she has previously visited Country D, including with the child and has returned to Australia on each occasion.  However, the timing of the travel and return with the child pre-dates the breakdown of the relationship between the parents.  That is, each return with the child was in the context of the marriage still being on foot.  The parents are now in high conflict with each other. 

11. For the father it was further noted that Country D is not a Hague convention country.  Exhibit F4 was the case outline prepared by the father for the proceedings that were before this Court on 11 July 2016.  Paragraph 7 of that case outline was relied upon.  It dealt with the father’s then expressed concern, as raised in the proceedings, that the mother had taken no steps to identify what mechanisms might be available to cause her to return from Country D should she decide that she would stay there.  That is, the father had placed her on notice that an issue that he raised in the proceedings was that the mother had taken no steps to identify, in the context that Country D is not a Hague convention country, how it might be that the father could cause the child’s return.  Four months later in the proceedings, the mother has still taken no steps to identify whether any such mechanisms might be available. 

12. Against this, the mother says that there are benefits to allowing the travel.  In particular, it gives the child the benefit of contact with her grandparents and other family in Country D.  The mother expresses limitations in relation to her parents being able to travel to Australia.  They have business interests in Country D. In answer the father pointed to the fact that both of the mother’s parents had travelled to Australia for this wedding and that the ticket that was purchased in April 2016 indicates that the maternal grandmother is still able to travel to Australia notwithstanding her business commitments.

13. For the mother it was said that I could not come to a satisfaction that it was more likely than not that she had an intention to remain in Country D.  It was suggested by the mother that I would be able to come to a determination that was more likely then not that she would return from Country D should she go.  If I were satisfied as to either of these matters then that satisfaction would be likely to be determinative of the question of travel.  However, it was conceded that in order to determine the matter, it need not be the case that I could come to either of those findings. 

14. Noting the interim nature of the proceedings, and the contested nature of the mother’s intention in relation to remaining in Country D I am not well placed to make either of those determinations. 

15. It remains necessary, however, to make an assessment of the risk that the child may be retained in Country D, the significance of that risk to the child, and to set that against the benefits that may be denied the child by a refusal of the travel. 

16. Dealing firstly with the benefits that might be denied the child, the evidence was sparse.  The evidence rose little higher than the assertion that the child would be able to enjoy time with her Country D family in Country D that she would not be able to do if she were to remain in Australia.  I note that the child is not yet two years old.  I am unable to infer that at this point there is a significant benefit for the child in travelling to Country D.  This is particularly so in the context that it appears that at least the maternal grandmother is able to travel to Australia allowing the child to enjoy the benefits of her company. 

17. In relation to the potential detriment to the child, retention of the child in Country D would have the likely effect of the ending of her relationship with her father.  Given the assessment of that relationship by the author of the Child Responsive Memorandum, this is a matter that would be highly detrimental to the child. 

18. As to the extent of the risk of retention in Country D, the unchallenged conversations that the mother has had with the father evidencing an intention to return there permanently with the child and offering a substantial sum of money to have the father agree to such discloses that there is a significant risk of retention.  Against that, the mother offers up security.  However, the efficacy of this security is highly questionable.  It is unclear what the significance of the offer of the $200,000 is both in terms of whether it would equip the father to pursue proceedings in Country D to secure the return of the child should she be retained or, secondly, impinge significantly upon the mother’s interest in s 79  property proceedings in this Court thereby motiving her to return.  Without either of those contexts and, where the amount that the mother offered the father to agree to her travel was significantly in excess of the amount that she now offers up by way of security, I do not find that the offer of security persuasively minimises the risk of retention of the child in Country D.

19. In assessing the risk of detriment (per s 60CC(2)(a) - the potential loss of meaningful relationship with the father and the benefits that may flow from that) against the potential benefits to the child in allowing the travel (per s 60CC(3)(a) - the enjoyment of relationship with her Country D relatives), at this stage the child’s interests are not supported by allowing the mother to travel with her to Country D. 

the father’s application for additional time

1. The father seeks an extension of the time that he spends with the child, by a lengthening of the current 2.00 pm until 6.00 pm periods to full day, 8.00 am to 5.00 pm periods, and that their frequency be increased such that it is no longer Tuesday, Thursday and alternate Sundays but Tuesday, Thursday and Sunday of each week.  From March he seeks an extension of the Thursday into an overnight period. This is opposed by the mother. 

2. Key amongst the evidence is the Child Responsive Program Memorandum assessment of the parties and the child in September of 2016.  This reveals that the child has positive relationships with each of her parents.  The mother is assessed as being the primary attachment figure, but the child also has a warm and loving relationship with her father.  This is a relationship that “would most likely develop more fully over time”.  The strongest parenting difficulty identified in the Memorandum is parental conflict.  This conflict undermines the child’s ability to feel safe and secure in the father’s care overnight. 

3. For the mother it is said that the child’s current positive assessment is such as to indicate the current regime is the one to be maintained.  Further, it is said that the current regime allows the mother to continue to breastfeed the child.  However, when the child was younger the father had more significant care of her while the mother worked.  This involved whole days of care.  In order to facilitate this the mother would not only breastfeed but also express milk for the child.  That is in the past it was accepted by the parties that a longer period of care was acceptable and could be managed despite the difficulties that it might pose for the breastfeeding.

4. It is notable that one of the most significant criticisms that the mother makes of the father relates to the period of time that he travels with the child when he spends time with her.  The mother notes that the travelling time for the child when she is with the father can be for up to 50 minutes in each direction.  This makes up a significant proportion of the four hour blocks that the father spends with the child.  Longer periods would ameliorate the effect of a large part of the time being spent travelling.  Further, the father says that the longer periods would allow a better experience of time for the child as she would experience the father parenting across a broader spectrum. 

5. While the mother opposes an increase in time, it is notable that her Minute of Orders Sought contemplates that should she travel to Country D that the father would receive an extra two four hour periods compensatory time each week for every week that she was to spend in Country D.  This means that if she was to spend a month in Country D that for the following four weeks the father would be spending four week day periods each week with the child and one weekend period each second weekend with the child.  The mother conceded that she considered that this would be in the child’s best interest. 

6. In short the father asserted that the nature of the relationship between the father and the child as described by the family consultant shows both that he has the capacity to care for the child and that the relationship is of a quality that supports more time.  Further, the strong relationship between the mother and the child will not be undermined by an increase in his time with the child. These matters were said to reflect the considerations in s 60CC 3(b), (d) and (f).

7. A significant portion of the father’s evidence dealt with how the parents have managed the child’s health difficulties.  As submitted by the father, the efforts he has gone to demonstrate a capacity to provide care for the child.  He further submitted that they show a concern about the mother’s care of the child.    However, the evidence establishes significant cooperation between the parties in relation to her care despite their high conflict and disagreement regarding her health.  It may be that there is some differential between the parties, but this will fall to be determined at final hearing.

8. While the father seeks an extension to one overnight period each week the findings made by the report writer as to the difficulty with the child feeling secure in the overnight time while her parents were still in such high conflict tends against this outcome.  However, the warm and positive nature of relationship that each parent, the prospect of the development of the relationship between the child and her father, the history of a greater level of involvement by the father and the fact that the mother’s proposed compensatory scheme would see an increase in time for a period between the child and her father, tends toward a conclusion that an extension of the current periods of time the child spends with her father is called for.  While he seeks an extension to 8.00 am to 5.00 pm and an additional day it seems that incremental change at this stage is called for.  An increase from four hour sessions to nine hour sessions appears to be an abrupt change.  On balance an increase is called for although not in the terms as sought by the father at this early stage of the proceedings.  Accordingly I will make orders extending the father’s current time so that he will spend time with the child each Tuesday, Thursday and alternate Sundays from 10.00 am to 5.00 pm. 

9. While the father sought a change in the handover arrangements from the current handovers at a Police Station to handovers at the Suburb C Railway Station the practical benefits were not adequately supported by evidence.  Given the high degree of conflict that exists between the parties, and the child being young enough so as not to appreciate the significance of it, the continued handovers ought take place at the Police Station to facilitate a lack of conflict between the parties at handovers.  This is particularly so given the previous episode of the mother calling the police in relation to the father, a step that the father says was unjustified.  If it was justified (it is a matter I cannot determine at present) then it should not be repeated.  Likewise if it was not justified (again a matter I cannot as yet determine) there should be no repetition of the unnecessary calling of police. 

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 December 2016

Associate: 

Date:  7 December 2016