Loh and Kalliou - [2007] FamCA 444

FAMILY COURT OF AUSTRALIA

LOH & KALLIOU

[2007] FamCA 444

FAMILY LAW - CHILDREN - Best interests - Application to take child for overseas holiday

APPLICANT:

MS LOH

RESPONDENT:

MR KALLIOU

FILE NUMBER:

MLF

5304

2000

DATE DELIVERED:

8 May 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

8 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bender

COUNSEL FOR THE RESPONDENT:

Mr Thompson

Orders

That the wife's application in her response to an application in a case filed 14 December 2006 shall be and is hereby dismissed.
That the husband's amended application for final orders filed 21 February 2007 shall be adjourned to the pool of cases awaiting a LAT hearing.
That there shall be no orders for costs.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5304 of 2000

MS LOH

Applicant

And

MR KALLIOU

Respondent

REASONS FOR JUDGMENT

This is a duty list case. It has been heard on the basis of affidavits and submissions about whether the 10-year-old son, who lives with both his parents in a week-about arrangement, should be able to travel with his mother to Malaysia and, if so, on what conditions. I am satisfied that his best interests are my paramount consideration (see the Full Court's decision in Kwon v Lee (2006) FLC 93-287).
The child’s mother is aged 33. She is a Malaysian and an Australian citizen who has lived in Australia for the past 20 years, completing her secondary schooling, a science degree, marrying the husband here, and working here. She has another child, a seven-year-old daughter, to an American father who lives in the USA and does not see her.
The mother says that it is important for her to take the child to see her close family in Kuala Lumpur. She has travelled there regularly but to date she has not been able to take the child. Her father is 72. Her mother has been treated for breast cancer. Her parents have frequently travelled to Australia, although her father has apparently not visited for about three years. In any event, she says it would be to the child’s benefit to see his grand-parents in their surroundings and with the opportunity to experience their culture and that part of his own heritage.
She says that she is, for the purposes we are discussing here, Australian. She identifies as being Australian. She loves Australia. She loves her lifestyle here. Her children are Australian and raised in Australia. Her friends are in Australia and she has relatives - aunties, uncles and cousins - who live here. Having sold her business within the last few years, she works now one day per week for another business and she is presently studying Chinese medicine and acupuncture at University.
The mother permitted the father to take the child to Greece to see his relatives in January this year, believing that both parents should be able to travel and expose the child to family and culture in their respective countries of origin. She says she can raise a bank loan of $20,000 maximum, as security for the 10‑day trip she proposes with the child and her daughter in the upcoming July school holidays.
The father, is 37. He is a scientist in Melbourne of Greek-Australian origin. He says he is fearful that the mother will not return the child to Australia. He points to the fact that when she was seven months' pregnant, the mother went to Malaysia and stayed with her family, not returning and effectively keeping the child from him, until she came back to Australia and the marriage with the child when he was six-months old.
Although he does not specifically allege that the mother has directly threatened to keep the child in Kuala Lumpur, he refers to comments of her wanting to do that, or wanting to stay in Malaysia, statements in the past that her parents want that, and comments in the past by the child that his mum wanted an extended holiday with him over there. He points to a bitter relationship between them, of very little trust between them, and of their ongoing acrimonious litigation between 2000 and 2004.
That litigation resulted in consent orders at the door of the court on 2 August 2004. There were mutual restraining orders against travel, the father says they were necessary as overseas travel had genuinely been an issue that had raged throughout those protracted proceedings. He points then to continuing arguments, disagreements and a lack of co-operation between the parents since then, including difficulties in the mother willingly complying with and paying half of the child’s private school fees.
The father says the mother’s parents have advanced significant financial support to their daughter, for legal fees in the course of all the litigation, to meet her half of the child’s private school fees, and by way of accommodation in a property in a Melbourne suburb registered in their names. He is concerned that the mother has no substantial ties in terms of either a business or real estate in Australia. He is concerned that the child, like his mother, is a Malaysian as well as an Australian citizen.
He relies on the affidavit of an expert in Malaysian law, Ms F, who sets out in florid detail the difficulties in securing the return to Australia of a child in Malaysia - a country that is not a signatory to the Hague Convention - and points even to a trend for a party in Malaysia to convert to Islam to take advantage of the religious courts in order to keep a child in that country. The expert's opinion is that it would cost up to AUS $220,000 to fight proceedings in the Malaysian court system.
I cannot make definitive findings about a number of the allegations and cross‑allegations on the strength of the papers but I can say that I am satisfied that it would be overall in the child’s best interests to experience his mother's home country, his birth country and the country of his grandparents and other close relatives, just as it was in his best interests to experience Greece with his father. However, the pendulum of his best interests would swing dramatically in the opposite direction if he were to be kept there, away from his father with whom he spends half his time. The mother says there is no chance of that, the father says that there is.
I am satisfied of sufficient risk, particularly taking into account the mother’s parents' financial influence, that her sister has returned to live in Malaysia in recent years, that the mother no longer has a business in Australia and no real estate here, and also the rigours and strains and stresses for her now that the father has filed an application seeking to increase his time and reduce her time with the child. I cannot ignore the dire, difficult, and expensive consequences if that risk were realised. Together, the risk and the consequences persuade me that it is contrary to the child’s best interests for him to travel to Malaysia without appropriate security to ensure his return and/or the father's capacity to secure that return if need be.
In terms of the s 60CC considerations, I emphasise the need for a meaningful relationship with his father as well as his mother, the need for continuity and stability with his schooling and lifestyle and connection with his Australian and Greek cultures as well as Malaysian, and the close relationship that he has with his father as well as his mother given the shared living arrangement.
The mother offers security of $20,000, and although I accept that is all that she can independently raise, in light of the expert evidence, I am satisfied that it is simply inadequate as a reasonable incentive to return, or to provide to the husband the funds reasonably required to pursue a return through the Malaysian courts. I am told that the mother’s parents have refused to countenance any more litigation between the parties by assisting in offering their Melbourne property as the relevant security for the mother’s return to Australia. That is their right, and although I can observe that otherwise they have been and continue to be very helpful and financially generous, and that they would not lose anything if their daughter returns as she says she will do, I certainly cannot make any definitive findings about the stance taken by them, save that it has probably exacerbated the husband's anxiety that she will stay in Malaysia.

DISCUSSION

COSTS

Section 117 of the Family Law Act deals with the question of costs. As counsel for the wife has said, each party shall bear his or her own costs but it is at the discretion of the court pursuant to s 117(2) of the Act to make an order against one party and in another party's favour. The matters that I have to consider are set out in s 117(2A) of the Act.
Mr Thompson for the husband seeks costs in two respects. He seeks the costs reserved by me when the matter was before me on 18 December last year. The husband was applying for permission to take the child to Greece. The mother attended court unrepresented and said that she agreed to the husband taking the child to Greece but was seeking her own order that the restraining order be lifted in relation to her taking the child to Malaysia. As her application was not ready that day I adjourned that part off and that is what has been heard today.
I do not propose ordering costs in relation to those reserved costs. I am left with a significantly lingering concern that the matter was handled a little high-handedly by the husband and/or his legal representatives, in the sense that the wife was consistent in responding to the request on the husband's behalf that she consent to the order for the child to travel to Greece, by saying that she wanted to approach both aspects and that her concerns were overlooked when the husband simply filed these proceedings. In those circumstances I do not propose exercising my discretion in favour of a costs order for the husband in relation to the December hearing.
So far as today's proceedings are concerned, counsel for the husband points to the fact that the wife has been wholly unsuccessful today, the husband should not be out of pocket, and the wife is capable of doing more paid work than she does or borrowing any costs ordered against her from her parents or by borrowing $20,000 from the bank, as she ascertained she could do in order to leave security for this trip.
I am sympathetic that, of the two parties, the husband has been the successful, but that is not the end of my considerations. I am satisfied that the wife has not brought this application frivolously and I have to say it is one that I had to think about very carefully because as I have said, all things being equal, it would be in the child's best interests to be seeing his grandparents in another country. I explained the balancing factors as I saw them and they came down on another side.
I am also concerned that it would be unduly harsh on the wife in terms of her financial position. She is a full-time student. She is doing some work in order to maintain herself and the child when he is with her. I do not think it is reasonable for me to order costs on the basis that her parents have paid for plenty in the past and therefore I can assume that they will again, and I do not think it is reasonable for me to proceed on the basis that whilst the mother was able to obtain a $20,000 bank loan on the basis that she would immediately repay it because it would simply be left by way of security, that she can afford to borrow and repay that amount.
The husband’s applicator for costs is dismissed and there shall be no order as to costs.

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

Associate:

Date: 8 May 2007

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