Linden and Bailey and Anor

[2010] FamCA 818

FAMILY COURT OF AUSTRALIA

LINDEN & BAILEY AND ANOR [2010] FamCA 818

FAMILY LAW – CHILDREN – Overseas travel

APPLICANT: Ms Linden

1^st RESPONDENT: Mr Bailey

2^ND RESPONDENT: Ms Bailey

FILE NUMBER: MLC 6550 of 2008

DATE DELIVERED: 23 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 23 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCarthy

SOLICITOR FOR THE APPLICANT: Moonee Valley Legal Service

COUNSEL FOR THE 1ST RESPONDENT:	Mr Marchetti
SOLICITOR FOR THE 1ST RESPONDENT	Victoria Legal Aid

FOR THE 2^ND RESPONDENT: In person

Orders

1. That the mother’s application filed 1 June 1010 shall be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Linden & Bailey and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6550 of 2008

MS LINDEN

Applicant

And

MR BAILEY

1^ST Respondent

MS BAILEY

2^ND Respondent

REASONS FOR JUDGMENT

1. This is the mother’s application to take 3½-year-old E to visit her family in China primarily, on her material, to celebrate her mother’s 61^st birthday, which she has sworn is really one of the most important birthdays in her culture.  The father opposes the trip.

2. I want to make every effort to ensure that the mother is not unfairly kept in Australia without the capacity to travel.  It is natural that she would want to see her family, and she should be able to do that.  However I need to make every reasonable effort to ensure that little E returns to Australia, and is not taken from and kept outside Australia.

3. There are numerous concerns arising from the mother’s application. One concern is that China is not a signatory to the Hague Convention.  Another concern is that, although the mother in her affidavit swore one thing about the possibility of raising money, I was told from the bar table today that she could not raise that money.  Then I was told she could raise a security of $1000, but then a matter of a very short time later, in the course of submissions, Ms McCarthy for the mother said that the mother is supported by a community group.  There is no affidavit from a representative of that group, but at that very late stage, I was told that the group could put up the $5000.  I have no details as to how that would come about, or as to how the mother would feel compelled to honour that security, coming from an organisation, and not from her own wealth or from her immediate family of people around her.

4. Another concern, arising from the affidavit material in response to the application, particularly the paternal grandmother’s affidavit, relates to the various versions of birth dates that the mother has given in relation to her mother.  The paternal grandmother also refers to various accounts given by the mother previously as to the dangers for her in China, and whether there would be repercussions when it comes to the child, if the child is now in China with her.

5. There is a concern, again arising from the paternal grandmother’s affidavit, that as the maternal grandparents are looking after the children of some of the mother’s siblings, that a similar arrangement could be made for E, or that the mother will be pressured to make that similar arrangement when she is in China. 

6. At this stage, I find there is an unacceptable risk that the child would not be returned to Australia, and I cannot permit that.  I shall dismiss the application.  If and when the mother has an application that is based on sound material, she is not precluded from making that application. 

7. The order will be that the mother’s application, filed 1 June 2010, shall be dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  23 August 2010