Mady & Farha (No 2)
[2022] FedCFamC1F 1022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mady & Farha (No 2) [2022] FedCFamC1F 1022
File number: SYC 5754 of 2018 Judgment of: CAMPTON J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – PARENTING – Application by the mother to travel to Country L with the parties’ child – Where the extended maternal family resides in Country L, including the maternal grandmother and three of the mother’s sisters – Where the child has not spent time with the father for more than two years – Where the proceedings are listed for trial within six months – Where the Court holds concerns that the mother may retain the child in Country L – Application dismissed. Legislation: AustralianPassports Act 2005 (Cth)
Family Law Act 1975 (Cth) ss 60CA, 60CC, 64D
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Line & Line (1997) FLC 92-729
Mady & Farha [2022] FedCFamC1F 306
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 19 December 2022 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Mr Skaf, Legal Aid NSW Domestic Violence Unit Solicitor for the Independent Children's Lawyer: Ms Yu, Kathryn Renshall Lawyers ORDERS
SYC 5754 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MADY
Applicant
AND: MS FARHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding of the mother filed 21 November 2022 be dismissed.
2.A copy of these orders and reasons be released to the Legal Aid Commission of New South Wales.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mady & Farha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings as to the parenting of a child, X, born 2014 (“X”). X lives with the mother. She has not spent time with the father since late 2020, being in excess of two years.
The proceedings were commenced by the father on his filing of an Initiating Application in the Federal Circuit Court of Australia (as it was then) on 7 September 2018. The parents are from Country C and married in Country C in mid-2011. X was born in Country C. In the first year after X’s birth the parties travelled from Country C to Country D, and in mid-2017 travelled from Country D to Country E. The parents and X came to Australia as refugees in mid-2018. Each of the parents and X now have permanent residency in Australia.
The parties separated under the shadow of what is described by the mother as a physically violent exchange with the father in mid-2018, less than one month after the family arrived in Australia. It was the mother’s evidence that X has spent only four supervised visits with the father since separation.
On 5 November 2018, interim orders were made by consent restraining each of the parties from removing X from Australia until further order and a request was made of the Australian Federal Police to place X’s name on the Airport Watch List until an order is made for its removal.
These proceeding were listed for trial across five days, commencing on 9 May 2022. For reasons then delivered, on 10 May 2022 I made orders vacating the trial (see Mady & Farha [2022] FedCFamC1F 306). Further orders were made by consent on 12 May 2022 regulating X’s parenting in the adjournment period, including that:
(a)X live with the mother and that the mother have sole parental responsibility for all major long-term decisions for X;
(b)Each of the parents engage in a process of therapy with a properly qualified clinical psychologist who is either fluent in Language B themselves, or is assisted by a qualified interpreter; and
(c)That the parents and the Independent Children’s Lawyer (“the ICL”) facilitate X engaging in a process of therapy with a properly qualified child’s therapist.
The trial is now listed to commence on 15 May 2023 for five days. The process of X engaging in therapy has been delayed and is about to commence.
The mother’s Application in a Proceeding
The mother by her Application in a Proceeding filed on 21 November 2022 broadly seeks that X’s name be removed from the Airport Watchlist for the period late 2022 to early 2023 for the purposes of travelling with the mother from Australia to Country L, provided the mother gives the father a copy of X’s return air tickets no less than 14 days prior to the departure date.
The ICL supports the mother’s relief. The father, who appeared without representation notwithstanding the making of s 102NA order, vehemently opposes the mother’s Application in a Proceeding. He is convinced that if she were permitted to travel to Country L with X, the mother and X would not return to Australia.
The mother deposed that she is not yet sure of the particular dates on which she would seek to travel with X, nor has she purchased any flight tickets. She said she intends to travel to Country L for approximately four weeks.
The mother’s evidence was that she wished to take X to Country L to visit her mother (“the maternal grandmother”), three sisters (“the maternal aunts”) and her aunty. All of those family members live permanently in City M, N Province, Country L. The mother said that until recently, she and X had not seen the maternal grandmother for some seven years. X has no memory of seeing the maternal aunts.
The maternal grandmother travelled from Country L to Australia for a period of four months between mid and late 2022. During that time she lived with the mother and X. The mother gave evidence that X developed a close relationship with the maternal grandmother during this period.
It is self-evident that:
(a)The mother filed her application for permission for X to travel five days after the maternal grandmother left Australia (her affidavit was incorrectly executed the day after the maternal grandmother left Australia); and
(b)Notwithstanding X had not physically spent time with the maternal grandmother for all but a few months over her entire life, this application is prosecuted with some contended but not readily apparent urgency in circumstances where X has now not seen the maternal grandmother for a period of one month.
On 26 November 2019 Judge Kemp made orders allowing the mother to travel with X outside Australia between late 2019 and early 2020. It was the mother’s evidence that she and X were not able to travel on that occasion as X was unable to travel on her Country C passport, and instead required a certificate from the Australian Passport Office. She said that in order to obtain that certificate, she and the father both needed to sign an application, however the father refused to do so. The mother implicitly submitted that the making of this order was an example of prior Court confidence in her connections to Australia and likelihood to return.
It was the mother’s evidence that her sisters will meet the cost of travel on her behalf. The mother recently commenced casual employment. Implicitly, she has no savings and lives in rental accommodation. She is applying for Australian citizenship. She contends she has strong ties to Australia, and said that she does not wish to relocate to Country L and has never made an application to this Court to permit her to do so.
During the hearing, the father submitted that notwithstanding the submission made on behalf of the mother, her ties to Australia are tenuous. It was his contention that the mother’s allegations of family violence are not credible and are a device that she has used to exclude him from X’s life. He gave a number of examples during submissions of supporting such contention and how he proposes to establish them at trial. He raises that, without explanation, the mother refused to let the paternal grandparents spend time with X when they travelled to Australia this year. He implicitly sought to draw an inference that this conduct illustrates an absence of bona fides on the part of the mother.
The law and consideration
Orders permitting parties to travel with children outside Australia are parenting orders within the definition of s 64D(2)(i) of the Family Law Act 1975 (Cth) (“the Act”) and hence attract the mandate provided by s 60CA of the Act, being that the Court must regard the best interests of a child as the paramount consideration when deciding whether to make a particular parenting order.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests. I will refer to those which are relevant in this case and have not been identified earlier in these reasons.
Further to the relevant s 60CC considerations, the Full Court in Line & Line (1997)
FLC 92-729 held that I am required to assess the degree of risk, if any, of the children not being returned to Australia if they are permitted to travel internationally and set out the considerations to which I ought turn my mind in assessing that risk of non-return, as follows:
(a)The existence or otherwise of continuing ties between the travelling parent and Australia;
(b)The existence and strength of possible motives of the travelling parent not to return to Australia;
(c)The existence and strength of possible motives of the travelling parent to remain in the other nominated country; and
(d)Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
On the very limited evidence before me, I am apprehensive about the mother’s ties to Australia being sufficiently strong so as to satisfy me that she would return to the country if she were permitted to travel with X. She gives evidence to some tenuous connections in Australia, being that she has casual employment here, that she has studied here and that X attends school in Australia. It appears on the evidence that at least a majority of the maternal family lives in Country L, and that the mother has no family other than X in Australia. The mother offers now security as a condition of travel.
The mother opposes X spending any time with or communicating with the father. While the mother said that she has no right to residency in Country L, nor any source of income to support her there, she deposed to family who have significant resources to support her if she elected not to return to Australia.
It is not controversial that N Province in Country L is a signatory to the Hague Convention. The Hague Convention is broadly an international treaty between countries that provides a framework for the prompt return of children where it is alleged there has been a wrongful removal or retention of them from their country of habitual residence. Australia is also a signatory to the Hague Convention.
The mother had the opportunity to propose that she be permitted to travel with X on condition, for example by way of appropriate security, and elected not to do so. This factor weighs against the mother’s application.
It further causes me some concern that in the middle of this litigation process, the mother unilaterally made an application to the Australian Passport Office for a travel document for X, apparently without notice to the father. While the mother currently has sole parental responsibility by way of the interim orders made on 12 May 2022, she was required by those orders to provide the father notice of any decision made in exercise of that responsibility “as soon as practicable” by email. There is no evidence that she has done so. The mother did not explain how an interim order for sole parental responsibility enabled the production of a travel certificate for X pursuant to the AustralianPassports Act 2005 (Cth).
I inquired of the ICL why, in all the circumstances, it was in X’s best interests to urgently travel to Country L within the next week or so cast against she spending the last four months with her grandmother when the issue of such travel is part of the forthcoming trial process in less than six months’ time when all of the evidence can be tested. Putting it another way, why was it in X’s best interests to make an urgent order for travel in these current school holidays now as opposed to travel during school holidays in six months’ time? The ICL was unable to meaningfully engage with that enquiry.
While I accept X would derive significant benefit from travelling to Country L, particularly in being able to spend time with the extended maternal family, I have real concerns as to the risk that the mother could decide to retain X in Country L. A significant part of my disquiet arises in circumstances where the maternal grandmother has just recently spent a significant period of time in Australia, and the completion of the trial is only six months away. My concerns are compounded by the mother’s position at trial being that she seeks to exclude the father in absolute terms from X’s life. I am concerned that if the mother perceives potential dissatisfaction as a result of the outcome of the upcoming trial, this increases the possibility of her not returning to Australia with X should she be permitted to travel. This concern is heightened by the fact of there being a palpable level of distrust and conflict between the parents.
In all of the circumstances, I am satisfied that it would be premature to permit X to travel to Country L. I am of the view that her interests at this stage are more powerfully met by she and her parents focusing on and engaging in the process of therapy as previously ordered.
During the hearing I expressed alarm at the allocation of legal aid resource on behalf of the
During the hearing I expressed alarm at the allocation of scarce legal aid resources on behalf of the mother and the ICL to fund the cost of this contended urgent and relatively misconceived application to achieve international travel for a child of relatively an impecunious parents who have recently come to Australia as refugees. I will direct that a copy of these reasons be released to the Legal Aid Commission of NSW.
The application of the mother will be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 20 December 2022
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