Lolos & Lolos

[2009] FamCA 529

COURT OF AUSTRALIA

LOLOS & LOLOS [2009] FamCA 529

FAMILY LAW – OVERSEAS RELOCATION – Protection Convention – which parent should be in possession of children’s passports – mirror orders

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (concluded 19 October 1996; entered into force 1 January 2002)

Convention on the Civil Aspects of International Child Abduction (concluded 25 October 1980; entered into force 1 December 1983).

Family Law Act 1975 (Cth) s 60CC(3)

APPLICANT: Ms Lolos

RESPONDENT: Mr Lolos

FILE NUMBER: MLC 726 of 2007

DATE DELIVERED: 4 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 4 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms L. Billeam

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms M. Barbayannis

Orders

IT IS ORDERED:

1. That paragraph 2(c) of the Orders made by the Honourable Justice Bennett on 19 February 2009, which provided that upon the Australian Passport issuing for the children, C born … April 2006 and F born … April 2006, the father’s practitioners lodge them with the Registrar of this Registry of the Court for safekeeping until further order, be discharged.

2. That upon new passports issuing for the said children the father’s practitioners may take photocopies of same, but then send the originals to the mother at [address].

3. That the application of the mother filed on 21 January 2009 and the response of the father filed on 10 February 2009 be otherwise dismissed and removed from the Active Pending Cases List.

4. That the reasons for judgment of this day be transcribed and copies made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 726 of 2007

MS LOLOS

Applicant

And

MR LOLOS

Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. This matter comes before me on the mother's application filed on 21 January 2009 in which she seeks that the British passport for each of the parties' children, C and F, both born in April 2006, be released to her, and that the Australian passports for the boys be released to the father. The father has said he agrees to the mother’s application but now the mother has changed her mind and wants to keep possession of all the Australian and British passports of the children.

The issue

1. The issue that I am required to determine today is who should have possession of which passports of the children. 

Relevant history

1. In brief compass, a final order was made on 6 August 2008 by consent, following a defended hearing of approximately six to ten days and the prospect of at least a further week in court. Inter alia, those Orders provided that the mother be permitted to relocate the residence of the children to England from 17 April 2009. 

2. Relevantly, the Orders provided that in the event that the husband does not relocate to England, that he be entitled to spend time with the children. This time would include a period of four weeks in Melbourne each year, at times to be agreed, with the wife to bring the children to Melbourne by no later than 22 December in odd‑numbered years, commencing in 2009, and no later than 1 August in even‑numbered years. In addition, the Orders entitled the father to spend time with the children in England. The Orders were drawn up by the practitioners and I assume that paragraphs 9(a)-(c) intended to relate to a one year period. These paragraphs entitle the father to spend four weeks with the children, at times to be agreed, with the father to give 60 days written notice of the dates he intends to be in England. The father is also entitled to a period of up to three weeks, given 60 days written notice, and a further period of up to one week, with 30 days written notice.

3. Paragraph 14 of the Orders provides:

   That on any occasion that the husband travels to the United Kingdom the wife provide the husband with the children's passports and the husband be at liberty to leave the United Kingdom for the purposes of having a bona fide holiday with the children for no more than seven days' duration until the children commence school. 

4. The father's family of origin is in Greece and it is common ground that he proposes to take the children from the United Kingdom to Greece for the specified period of seven days. There was considerable discussion about that during the trial.

5. In support of the current application, the mother filed an affidavit sworn on 21 January 2009 in which she annexed correspondence from the husband's solicitors. It is apparent from that correspondence that the husband would agree to a release of the children’s British passports to the wife if he could retain the children’s Australian passports.  The mother's application to the court appears consistent with that.  However, she now says that at the time she agreed that the husband could have the Australian passports, she well knew that the Australian passports had expired and would be of no use to the father.

6. The father filed a response to the wife's application on 10 February 2009.  In it he sought that the wife maintain and renew the United Kingdom passports and that he be entitled to renew and maintain the Australian passports.  His affidavit material in support alleged that the wife had agreed that he could have the Australian passports, knowing that they had expired. His allegation is obviously correct.

7. The husband seeks orders for service of any orders in these proceedings, upon appropriate authorities. In relation to his safekeeping of the Australian passports, he seeks a further order that:

   In the event that the said children require their Australian passports to return to Australia at any time, then the husband is to ensure that no less than 14 days prior to the children's travel to Australia he provides to the wife the children's passports and that within 48 hours of the children arriving in Australia that the children's passports are to be returned to the husband or to an agent or servant of the husband as informed to the wife.

8. Further Australian passports have issued for each of the two children but have not yet been received by the solicitors for the husband. 

9. In support of the father's response, he swore an affidavit on 19 February 2009.  He makes it clear that he agreed to the mother retaining the British passports on the basis that he believed the Australian passports to be valid.  He is still prepared for the mother to have the British passports but wants the valid Australian passports issued to him.  In paragraph 6 he deposes:

   The wife has asserted that the reason why she needs to retain both the Australian passports and the British passports of the children is because the children require the Australian passports to enter Australia.

   Paragraph 7:

   That I have made various inquiries with the Department of Immigration and it does appear to be the case that the Department of Immigration does not have the power to issue Australian visas to Australian citizens.  The presumption is that any Australian citizen who is travelling out of Australia is required to have an Australian passport.  Whilst an Australian citizen with dual citizenship can travel out of Australia on a foreign passport, the problem arises in the event where an Australian citizen attempts to re‑enter Australia.  Such a person, being an Australian citizen, cannot obtain a visa, and, if that person does not have an Australian passport, he or she cannot enter the country.  So it is imperative that even persons with dual citizenship have a current Australian passport.

   Paragraph 8:

   Given that it may be difficult for the wife to return to Australia with the children without their Australian passports, I propose that I provide to the wife the children's Australian passports, if required to re‑enter Australia, within 14 days of the children's travel to Australia.  Then I seek an order that within 48 hours of the children's arrival in Australia the wife return the children's passports to me or to my servants or agents [No such order is sought.]

   Paragraph 9:

   That I submit that my proposal is reasonable and practicable.  The wife has informed me that she does not wish for me to have the children's Australian passports as she does not wish for me to be able to take the children out of the United Kingdom at any time when I travel there to visit them in accordance with the final orders made by the Honourable Bennett J.  I would be unable to take the children to Greece to visit my family, for example.  I do not wish to have any difficulties when I travel to the United Kingdom to see the children as the litigation in relation to the children's residential arrangements was not only very expensive but particularly stressful for me, and, I am certain, for the wife.

10. The husband's apprehension about the mother's intention to comply with the orders and cooperate with him travelling with the children for one seven day period outside the United Kingdom during his time seems to be justified on the basis of the mother's response.  She deposes, in paragraph 5 of her affidavit sworn on 17 February 2009, as follows:

    As to paragraph 8, I feel the proposal from [the husband] is controlling and takes away our freedom of movement.  If the father is granted these passports, I would not feel comfortable booking any tickets until I have the passports in my hand.  Given this, the father would need to post them to me 90 days before we visit to give me ample time to book reasonable‑priced flights.  This coincides with me needing to be provided flight information 60 days before, as agreed in our orders of 6 August 2008.  The danger of passports being posted is not one that I would like to consider. 

11. Paragraph 6:

    As to paragraph 9, I have consented to this court my agreement to the children travelling out of the UK for a seven‑day bona fide holiday with the father.  I agree he is their father and should have the right to take them on holiday.  I have never told the father that I will stop him taking them on a holiday.  I do, however, have my concerns about the children going on a seven‑day holiday abroad four months after we have relocated.  I am worried about the children's stability travelling out of the UK so shortly after we have relocated.  The insecurities I feel arise from moving away from their father, settling into their new home and then a few months later going on a seven‑day holiday on a plane, again far from their mother.  I also have concerns about the father's intentions for his adamant need to hold the children's passports, as he has expressed a different need to me than the one he has presented to the court.  [The father] has on numerous occasions told me he refuses to stay in the UK for four weeks, as he has no‑one there.  He has told me that as soon as he arrives in the UK he is jumping on the next plane and taking the children to Greece for four weeks.  I have asked him if he thinks this would be good for the boys, and he told me "Probably not," but he doesn't want to be in England, so he will take them to Greece to see his family.  [The father] has not visited his family in Greece since we met in 2001.  I hoped that by August [the father’s] anger would have worn off and he would see what is best for the interests of our children.  I also offered him in the court orders of August 6th the sole use of my home in the UK.  I did this so that the children would not be disturbed.  [The father] has told me he refuses to make use of this offer.  I would like the judge to make provision for the above and make an order to only allow holidays with the father within the UK until the children are of school age.  If the father does take the children out of the country for longer than agreed, I would like him reminded of the Hague Convention.

12. The mother’s “concern” about the father taking the twins to Greece for a week so soon after their relocation is new. It is also inconsistent with the evidence which she gave in the completed proceedings which was to the effect that she had no objection to a seven day trip at any time.

13. This family is not new to the 1980 Hague Convention[1].  The proceedings which were completed were segue with proceedings brought in England under the 1980 Convention at the request of the father for the return of the twins to Australia after the mother wrongfully removed the children to England following the parties' separation. The children were repatriated to Australia.

    [1] The Convention on the Civil Aspects of International Child Abduction concluded at The Hague on 25 October 1980

Discussion

1. The completed proceedings before me were characterised by an unusually high degree of mistrust and a significant degree of poor behaviour by both parties toward each other. In this subsequent instalment of litigation it is apparent that the mother’s application for the father to retain the Australian passport was disingenuous to say the least.

2. In submission, the solicitor for the husband indicated that her client would agree to provide the Australian passports to the mother 90 days prior to any proposed travel.  The mother raised an objection to the passports being sent by post. However, the solicitor appearing on behalf of the mother, who was in fact the duty solicitor at court, conceded that it is appropriate to send passports by post. In fact, the Passport Office in Australia send out newly issued passports in the ordinary mail as opposed to registered or receipted postage.

3. The substantive submissions on behalf of the husband were as follows. First, the mother’s application as filed in the court was for the father to have the Australian passports.

4. Second, the father contended that there is no need for the wife to have both British passports and Australian passports.  There was an absence of evidence in relation to what passports should be used by the children to enter and then depart Australia. Was it feasible for them to enter Australia on an Australian passport and depart on a British passport? I stood the matter down for some time whilst the parties tried to reach some agreement on the law in relation to entering and leaving Australia.  On resuming, I was advised that counsel had spoken to an immigration expert who offered the opinion that it would be more straightforward and less difficult for the children to enter Australia using an Australian passport and to leave Australia using an Australian passport. The parties were content to proceed on the assumption that was correct. 

5. Third, the father submitted that it appeared that the only reason the wife may need to have Australian passports for the children is to re‑enter Australia, and pointed to conflicting advice having been received from the Department of Immigration.  Given the discussion that the parties had with the immigration expert, I do not accept the submission.

6. Fourth, it was submitted on behalf of the husband that the wife's conduct has given him no confidence that the mother will cooperate with him having seven days with the twins in Greece. It is not difficult to see his point. In particular, he says that he has no confidence that, upon his arrival in the United Kingdom, the wife will release the boys’ passports to him so that he can travel to Greece.  There is considerable merit to this submission.

7. Fifth, in response to the mother’s assertion that the father will not give the Australian passports to her when she needs them, the husband contended that it is in his own interest to ensure that the Australian passports are sent to the wife in a timely manner so she can arrange for the travel of the children to Australia.  Without the Australian passports, the children would not be able to travel, and, arguably, their tickets would not be able to be booked.  That is also a submission which I accept.

8. Sixth, it was submitted on behalf of the father that there is no risk in allowing the husband to retain the children's Australian passports as the wife will retain the British passports and will be able to, on her own version of events, travel anywhere in the world, except Australia, with the children.  That submission belies the fact that the orders contemplate that the mother will be travelling to Australia with the children if the father does not relocate to England. 

9. Seventh, it was submitted by the father that allowing the father to retain and renew the children's Australian passports may very well avoid further proceedings in the United Kingdom if the wife were not to hand over the passports to the husband when he visits the children there for the purpose of him taking the children to Greece for seven days; or elsewhere for seven days, for that matter.  I accept that submission but it is the same submission as the fourth submission.

10. Eighth, the husband consents to the wife retaining the children's British/European passports at all times, and to a renewal of same without his consent.

11. Finally, the wife led the husband to believe that the Australian passports would be left with him by consenting to the final orders being made in the terms in which they were made.  If there the father is referring to the Orders made on 6 August 2008, I cannot accept that submission.  The Orders made on 6 August 2008, by paragraph 14, provides that the wife provide the husband with the children's passports so that he can leave the United Kingdom with the children for one holiday of not more than seven days' duration, until the children commence school.  The children are now or will shortly be three years of age; they are not yet at school.  In my view, that order is based on the mother having the passports; or, to frame it more neutrally, it is that the passports follow the children. 

Legal Principles

1. As with any application to the court seeking parenting orders, or orders in relation to children, the best interests of the children is the paramount consideration.  The core values of the Family Law Act 1975 (Cth) are to ensure that the best interests of children are met, by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and by protecting the children from physical or psychological harm or from being exposed to abuse, neglect or family violence.

2. There are several additional considerations through which the best interests of the children can be ascertained. In an application such as this, which does not seek to vary, set aside or appeal the Orders of 6 August 2008, but which constitutes competing applications about the discrete question of the renewal and release of passports, the majority of the additional considerations are not relevant. 

3. Pursuant to s 60CC(3)(i),  I have regard to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents. As indicated, the completed proceedings were characterised by an unusually high degree of mistrust between the parties. It is a degree of mistrust and deception which is manifest in the application that I now consider today.  That is, the mother came to the court saying the father could have the Australian passports, the father took that offer at face value and accepted it but the mother knew all along that the passports the father would retrieve were expired and useless to him and she would not agree to any renewal. The proceeding reflects very poorly on the mother and it leaves me with a sense of foreboding for the future.

4. Pursuant to s 60CC(3)(l), I have considered whether it would be preferable to make an order that is least likely to lead to the institution of further proceedings in relation to the children.  The legislation includes this as a matter against which the best interests of the children are to be determined because parenting proceedings are never final, in the sense that children's and their parents' circumstances change and arrangements may need to alter as a consequence of the changes.  Counsel for the father urged me to have regard to the well-founded suspicion (as she described it) on the part of the father that the mother will try to stymie him taking the twins to Greece for a week by withholding the boys’ passports. It was submitted that I should permit the father possession of the Australian passports so that he could take the children regardless of any attempt that the mother may make to thwart him and so as to obviate the need for the father to have to institute further proceedings in England, urgently and expensively.

1. I have considerable sympathy with the father's reservations about the mother’s attitude to him taking the children out of England for the one period of seven days which the orders envisage. However, today and through the solicitor who appears on her behalf, the mother has stated unequivocally that she is prepared and stands ready for the children to have seven consecutive days with their father in Greece pursuant to paragraph 9 subparagraph (a) of the orders made on 6 August 2008.

2. When the children travel to England they will, in every sense of the word, be assuming England as their permanent home. They will, in the language of international instruments, including the 1980 Convention, be habitually resident in England.  As such, it is not for me to regulate the life of the mother and boys in England over and above the setting the conditions precedent to the entitlement of the mother to relocate the boys there. Thereafter, the regulation of the boys’ lives and the responsibilities and obligations of the parents are matters most appropriately attended to, if need be, by the courts of the boys’ country of habitual residence, England. It is a matter of common sense. It is also consistent with the philosophy and provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and co-operation in Respect of Parental Responsibility and Measures for the Protection of Children concluded at The Hague on 19 October 1996 which has entered into force for Australia and in respect of which there is every indication that the United Kingdom will accede at some point.

3. I am not going to order that the father have the Australian passports in order to safeguard against the anticipated non‑compliance of the mother with his entitlement to take the children out of England for seven days.  That will be a matter for the English courts, in the sad event that there is a dispute.

4. The best interests of the boys is the paramount, but not the only, consideration for me. I am satisfied that a common sense approach is most appropriate. Accordingly, the passports should follow the children.  As the boys are residing primarily with the mother, she should have both sets of passports, except to the extent that it is necessary for the father to have the passports to put into effect his entitlement to take the children out of England.  The Order made on 6 August 2008 provides that the mother provide the passports to the father for that purpose.  That should occur. I can only assume that it will. If the assumption proves to be incorrect, I trust that the father will move swiftly to approach the relevant court in England so that the time which the boys are entitled to spend with him is not compromised.

5. The husband also seeks orders that, prior to the mother's departure with the children to the United Kingdom in April 2009, she register these orders with an appropriate court of competent jurisdiction in the United Kingdom.  This application is unnecessary.  Pursuant to the Order of 6 August 2008, a precondition to the mother's relocation of the children to England is that she obtains orders in the terms of the relevant parts of the final Order. Relevantly, the Order of 6 August 2008 provides:

   That prior to the wife relocating the children's residence to the United Kingdom the wife cause these orders to be made in the terms of paragraph 8 herein in the family division of the appropriate court in the United Kingdom exercising family law jurisdiction and shall provide a certified copy of same to the husband.

6. Today, neither party presses an application to effect registration or recognition of orders in England. I understand that the mother has instituted proceedings in England.  Those proceedings were apparently adjourned at some earlier date, but are before the court in England on Friday, 6 March 2009.  There has been some communication between Mr Riddiford, who is a Registrar of this court, and the solicitors acting for the mother in England.  At the request of the parties I have communicated with my counterpart in England pursuant to arrangements under the International Hague Network of Judges. The father does not have representation in England, but I understand that everything is in place to signify that he consents to the mother’s application in England being granted.

7. If the mother does not secure the mirror orders in England by the date of her proposed departure, she will not be permitted to leave Australia with the children.  Nothing will stop her leaving, but the children will stay.  If the mother does obtain the mirror orders in England prior to the date of her departure, it would appear that the conditions precedent to her being able to relocate the children will have been met.

Addendum

1. On 6 March 2009, the High Court of Justice Family Division in the … District Registry pronounced mirror orders after having consulted with the Hague Network Judge for England and Wales, The Right Honourable Lord Justice Thorpe.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  22 June 2009