Lu and Fotheringham

[2009] FamCA 580

FAMILY COURT OF AUSTRALIA

LU & FOTHERINGHAM [2009] FamCA 580

FAMILY LAW – CHILDREN – Permission to travel overseas

APPLICANT: Ms Lu

RESPONDENT: Mr Fotheringham

FILE NUMBER: SYC 7793 of 2007

DATE DELIVERED: 26 June 2009

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 26 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Respondent In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Applicant mother is hereby permitted to remove … born … July 2005 (“the child”)from Australia to the Philippines from 8 July 2009 until 27 July 2009 provided that:

   a.she lodges a bank bond or other security for the child’s return to Australia on or before 27 July 2009 in the sum of $8000.00 with the Court by 4:00pm on Friday 2 July 2009; and,

   b.she provides the father with a notarised letter signed by her in which she states that … born … July 2005 (“the child”) is travelling to the Philippines from 8 July 2009 until 27 July 2009 solely for the purpose of a holiday there but is an habitual and permanent resident and citizen of Australia and accepts that she must return him to Australia by 27 July 2009. 

2. For the purposes of permitting the said child to be removed from Australia pursuant to order 1 the Court requests that the Australia Federal Police remove the said child’s name from the Airport Watch List at all points of international arrivals and departures in Australia from 8 July 2009 to 27 July 2009 inclusive.

3. That on the lodgment of the bank bond or other security with the Court pursuant to order 1.a. the said bond or other security is to be held by the Court subject to further direction by it until the child is returned to Australia with the exception that if he is returned to Australia on or before 27 July 2009 it is to be returned to the Applicant mother forthwith at her request.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7793  of 2009

MS LU

Applicant

And

MR FOTHERINGHAM

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife to be permitted to take the parties' child on a holiday to the Philippines.  The wife is a Philippino national aged 38 years.  The husband is Australian and is 63 years old.  The parties married in June 2005 and their child was born in Australia in July 2005, so he is now nearly four years old.  He is an Australian citizen and is currently the subject of a notice on the Court's airports and other ports of exit watch-list that are kept by the Federal Police for the purpose of preventing people from leaving Australia who should not be permitted to leave.

2. The wife migrated to Australia when she was pregnant with the child.  The husband had met her in the Philippines.  The parties separated on 24 June 2007 when, without warning to the husband, the wife took the child and went to stay at a women's refuge.  She did not warn the husband because she regarded him as abusive towards her.  She claims that he had been verbally abusive and financially controlling of her during the time that they lived together.  She did not tell him where she and the child were staying and he had to resort to the Court to regain contact with the child and the use of private detectives to discover where the wife and he were.

3. The wife receives no child support from the husband.  She claims he works as a taxi driver but claims that he does not have an income so he will not have to support either her or the child.  On 16 September 2008, Altobelli FM made consent orders for the child's upbringing.  Among other things he gave the parties equal shared parental responsibility and made orders which require the child to live primarily with the wife but spend time with the husband.  Currently these orders provide that the child live with the father from Sunday afternoon to Tuesday morning each week and on other special occasions.  When the child turns four in a few days, of the time he will spend with the father will be extended to Wednesday morning.

4. There have been no breaches of any of the orders which were made.  The parties, despite the wife's allegations, do not seem to have much animosity and are able to speak with each other and deal civilly with each other.  Although the wife does wish the husband to know her address she says, and I accept, that the husband still loves her and has a history of having stalked her.  She does not claim to fear him but says she wants to avoid the stalking and wishes to retain her privacy. 

5. One of the orders made by the magistrate as order 23, it provides that each parent require the written permission of the other to take the child overseas.  It also requires 28 days notice and itinerary, contact numbers and addresses and copies of return tickets to be provided to the non-travelling parent.  In addition, it requires a lodgement of an $8000 bond to be paid into an agreed trust account as security for the return from overseas of the child.  There has been no consent in this instance by the husband to the holiday which the wife proposes for the child.  She hopes to be able to leave on 8 July 2009 and return on 26 July 2009.

6. She has tendered in evidence her and the child’s flight itinerary and copies of their return airline tickets as well as a savings bank account showing it is in credit to the extent of $8000.  She has accumulated this sum from her wages.  She has had permanent employment for more than 18 months.  Her contract of employment continues until 29 April 2011.  She is a community carer and owns her own car.  She has had the same rental accommodation since 2007 and she has lodged a $1200 tenancy bond to secure her rental payments.  Her tenancy continues. 

7. She has nursing and psychology qualifications from the Philippines.  She impresses me as an honest, able and pragmatic person of very good character who has successfully negotiated the great change in her circumstances involved in migrating to Australia, having had a child and having separated from the husband.  I was very impressed by her evidence that she has made friends since leaving the husband, some of whom she regards as surrogate family.  She has a male friend.  I was even more impressed by her evidence that the child is close to the husband and that she would not harm the child by attempting to distance him from the husband. She said she did not want the child to develop behavioural problems as a result of being deprived of his father's presence in his life.

8. The fact that the parties entered into consent orders confirms her willingness to maintain the relationship between the father and son.  She wishes to visit her family in Manila.  She is one of many children.  She hopes that there will be a family reunion in Manila.  Her mother and some of her siblings and family and their families live there.  It is hoped that two of her sisters who now live in California, and a brother who lives in Canada, will also be able to attend.  She says her family members have their own lives and if she were to stay she would be intruding.  Her father is dead and her mother has remarried recently, so it is not as though she needs her care or company.

9. The wife has provided in her affidavit the address and phone number of her brother with whom she hopes to stay with the child.  She points out that the husband has visited the Philippines many times and enjoys going there.  He knows her family and the address and location of their old family home in the Philippines where members of her family still live, so it would not be difficult to locate her, or for the authorities to commence inquiries to do so if it is necessary to find her.  She points out that the child is entitled to know, and it will benefit him to know, her Philippine family and more about his Philippine heritage.  She has applied for Australian citizenship and has already passed the knowledge qualification test.  As the child was born in Australia, he is an Australian citizen, as I have already said. 

10. The husband says that there is an unacceptable risk, that once the wife is permitted to take the child to the Philippines she will not return with him and that there are other dangers inherent in taking the child to the Philippines.  He points out that the Philippines is not a Hague Convention country, and the wife has a history of taking the child surreptitiously and not disclosing her own or his whereabouts.  He says she is typical of the type of person who abducts his or her children to another country against the wishes of the current parent.  Naturally, this is probably true but I am dealing with the wife, not a statistic, and I have formed the strong opinion that she intends to return with the child.  The other argument of the husband's are, firstly, that the Philippines is a corrupt and dangerous country and that the Australian Department of Foreign Affairs travel advice is that one should not travel there, and if one does, a high degree of caution should be exercised.

11. I am satisfied that the wife knows the Philippines well and that she would do nothing to put the child at risk and would not take him there if she thought he might be at risk.  I am not satisfied in the circumstances that there is any physical risk to the child from being taken to the Philippines.  In my view it is highly likely the level of risk for a stranger or tourist is quite different from the level of risk for somebody who has recently been a local.  And the wife would understand where dangers lie and what they might consist of and how to avoid them, something that a tourist or non-local would not understand.  In those circumstances the risk to the child is not as high as is indicated by the Australian travel advice.

12. The next point the husband makes is that if the wife does not return the child it would cost much more than $8000 for him to obtain the child’s return to Australia.  He asked that she lodge a $100,000 bond.  I have no doubt that the wife could not lodge a bond of more than $8000.  It seems to me to be extraordinarily diligent in being able to save the $8000, as well as the money for the airfares, in the situation she has been in, in such short time.  It is an indication of her ability that she has done so.  It is also an indication that she can live in Australia successfully.

13. I nevertheless accept that it would be highly likely to involve the husband in considerably greater expense than $8000 to gain the child’s return if he is not returned to Australia by the wife.  However, as the child was born here and is an Australian citizen, it is highly likely that the Australian Department of Foreign Affairs would help him to obtain the child’s return in the event that the wife does not return him. 

14. The husband has asked, in addition to the bond, that it be a condition of the child being permitted to travel overseas that, if he is permitted to do so against his wishes, that the wife provide a notarised letter acknowledging that the child’s country of habitual residence is Australia, and that by not returning the child of his country of habitual residence by the return date on his return  ticket, the wife will have broken the law of Australia and will be subject to any penalty that may be imposed on her by the appropriate authority.

15. However, it is not a criminal offence to fail to return a child who habitually resides in Australia by the return date on his airline ticket and I would not be inclined, although such a failure could in specific circumstances amount to contempt of this Court to impose a requirement of that nature.  In addition, I do not think that such a letter would affect the authorities in the country where the child might be, specifically the Philippines.  In fact it might be a reason to refuse to return the child and therefore force the mother to return to Australia for the Philippine authorities.  Nevertheless, the idea of an admission by way of a notarised letter that the child habitually resides in Australia could provide a useful way of convincing overseas authorities that the child really has ordinarily lived in Australia. 

16. The next point that the husband makes is that the wife does not trust the husband, wants to avoid the husband and his stalking, and seems to, by those wishes, want to exclude him from her life.  He says this would be sufficient motivation for her to leave Australia.  His next point is that after all she is a Philippino citizen, was born and raised in Manila.  Her family and cultural ties are there, and she has better qualifications to work there so has further motivation to stay there with the child, particularly as she has no family in Australia. 

17. He also claims that she feels disenfranchised with, and disillusioned by, Australia.  I do not accept these latter claims.  I think that her ability to get on with her life indicates that she, while I am not satisfied has fully settled here, is in the process of doing so and is optimistic about doing so, and in those circumstances is less likely to wish to return to the Philippines.  After all, although it might not be politically correct to say so, this Court is not unaware of the commonness of instances where people marry Australians with some degree of their motivation being to leave a country where they are unhappy and improve their life in Australia.

18. In determining an application like the one before me, the Court must consider the child’s best interests. Section 60CC of the Family Law Act applies.  I shall now apply it so far as it can be applied to the facts which are before me.  If the child is not returned to Australia it will take away his chances of having a meaningful relationship with the husband.  It will also subject him to psychological harm but not, in my opinion, physical abuse, neglect or family violence.  There is no evidence that the child has expressed any opinion about travelling to the Philippines.  If he has expressed any views, these would have little weight because of his age and consequent level of maturity and understanding.

19. He has a very good relationship with the husband so that separation from the husband which would be involved in non-return is likely to harm him.  I am, however, quite satisfied that the wife is aware of this and is able and willing and has in fact facilitated and encouraged the creation of a close relationship and the continuation of that relationship between the husband and the child.  The short time the wife spends with the child in the Philippines will not undermine his relationship with the husband, but of course if she keeps him there, that relationship will be undermined for as long as he is there.

20. To go there will help the child form a beneficial relationship with the wife's side of the family.  It will be impossible considering the large number of people in the wife's family and their location in Manila and the costs of visiting Australia for the child to develop proper ties with the wife's family unless he visit them in Manila.  As I regard the wife as having demonstrated a high capacity to provide for the child’s emotional needs, and as being a highly responsible parent, I regard her as unlikely to fail to return the child to Australia so that he can continue to be close to the husband.

21. I note that the child is entitled to experience and learn about the lifestyle, culture and traditions in both Australia and the Philippines because of his mixed heritage.  If he is able to visit the Philippines often this will advance his right to fully understand the cultural aspects of life in the Philippines and attitudes of people of that background.  He needs to commence being exposed to them early.  Now is a good time.  If the child is not permitted to go to Manila with the wife, both the wife and the child will eventually resent the husband for this restriction. 

22. Currently the parties have a good relationship in the circumstances.  The wife, while not now resentful of the husband's past controlling behaviour, is bound to become resentful of this most recent manifestation of it, if she is prevented from taking the child with her to the Philippines.  In the circumstances, such resentment is likely to undermine the current ability of the husband and wife to co-operate in raising the child.  It also, in the long run, is likely to undermine the child’s relationship with the father because of his own resentment of his father preventing him from what could only be regarded as desirable and enlightened travel.

23. As I have said, if the wife is permitted to take the child there she is likely to return so there is far less chance of the relationship between husband and wife being damaged by non-return.  As I find that the wife will return with the child, the order which will best result in minimisation of the chances of institution of further orders are those which permit the wife to take the child to the Philippines as she plans.  To impose conditions which she is not able to meet will simply prevent the trip.  She, I find, will not be able to lodge a bond of more than $8000 so should not be required to do so.

24. As for the other conditions that are sought, I am of the view that no harm can be done and possibly some good, if the wife provides a letter signed by her in front of a notary public or justice of the peace which admits that the child’s father is a resident of Australia and that the child currently is a permanent resident of Australia and is habitually resident in Australia, and has been taken out of Australia for the purpose only of a short holiday.  It should be easy for the wife to provide such a letter and I shall order that it be provided.

25. In all of the circumstances it will be necessary for the child’s name to be removed from the watch-list for the time he is due to be away with the wife.  There is no need to make orders relating to his passport because he not only holds an Australian passport but the wife has possession of it.  I therefore regard it in the child’s best interests to be permitted to travel with the wife as she plans and as she is likely to return home as she claims, I should grant her application.  Because she has already complied with most of the conditions required by the orders of September 2008, I shall not require her to meet those unless her travel plans change. I shall merely require her to lodge an $8000 bond, provide the letter, as conditions of those things.

26. I will make an order that she be permitted to take him from Australia to the Philippines for the period she asks and for that purpose that his name be removed from the watch-list.  I shall make orders accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: