MANKUS & MATULIS
[2015] FamCA 217
•1 April 2015
FAMILY COURT OF AUSTRALIA
| MANKUS & MATULIS | [2015] FamCA 217 |
| FAMILY LAW – CHILDREN – forum for the determination of parenting proceedings - removal of children from Country E by the mother to Australia – where the children and parents are Country E and have permanent residence in Australia – where the mother says there was a long held plan for the family to move to Australia – where the father wrote letters of support for a child of the marriage to be granted permanent residency in Australia – where some children are Australian citizens – where the mother says she will not return to Country E – meaningful relationship with both parents – time between now and the finalisation of proceedings – change in circumstances – practical difficulty and expense – best interests of the children. |
| Family Law Act 1975 (Cth) ss 11F, 60CC |
| G & C [2006] FamCA 994. Killam and Loeng [2015] FamCAFC 41 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Pascarl & Oxley (2013)FLC 93-536 Zanda & Zanda [2014] FamCAFC 173 ZP v PS (1994) 181 CLR 639 |
| APPLICANT: | Ms Mankus |
| RESPONDENT: | Mr Matulis |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | PAC | 5648 | of | 2014 |
| DATE DELIVERED: | 1 April 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 20 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shroder |
| SOLICITOR FOR THE APPLICANT: | Smythe Wozniak Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Tockar |
| SOLICITOR FOR THE RESPONDENT: | Owen Hodge Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms DeVere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Parramatta |
Orders
That the forum in relation to the application for final orders filed 24 November 2014 is the Family Court of Australia.
That the father is restrained from continuing with or prosecuting any application in relation to parenting orders concerning the children B (born … 2006), C (born … 2009) and D (born … 2009) in the Family Division of the High Court of Country E.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankus & Matulis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5648 of 2014
| Ms Mankus |
Applicant
And
| Mr Matulis |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents, who separated in December 2012 after a 12 year marriage, are in dispute about the future parenting of their three children, B, who is eight and twins C and D who are five. This is an application for a determination in relation to the forum in which that parenting dispute is to be heard.
The father has commenced family law proceedings, including parenting proceedings in Country E, and wishes for the parenting dispute to be resolved in that country. The mother has commenced parenting proceedings in the Family Court and seeks for those proceedings to be determined in Australia. The Independent Children’s Lawyer supports the mother’s application.
Both parties agree that this Court has jurisdiction to determine the parenting proceedings and that the question to be determined in this application is whether it is in the best interests of the children for the parenting proceedings to be determined in the Family Court of Australia or in the High Court of Country E.
Country E is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Background
Ms Maunda (“the mother”) and Mr Matulis (“the father”) who are both aged 44 were born in Country E and have spent much of their life in that country. They met in 1993 in the Country L where they were both studying at university. The father says they commenced living together in Country E in 1994, while the mother says this occurred in 1996. During their relationship the parents travelled either together or alone to study, work and live in various countries.
The father came to Australia in 1998 to study for a doctorate at University F.
The parties married in Country E in 2000. Shortly after their marriage, the mother accompanied the father to live in Australia while he completed his university studies, on an accompanying spousal visa. She obtained her New South Wales professional registration and worked in Sydney.
In 2002 the parties applied for permanent residency in Australia.
After the father completed his doctorate the parties travelled to Country G in 2002 where the father taught at a university and the mother worked in her profession.
In 2004 the parents moved from Country G back to Country E.
In August 2004, the parties obtained permanent residence visas for Australia. The primary applicant was the father and the visa granted to the mother included a condition that she was not to travel to Australia before the father. Both visas allowing entry to Australia were granted with a condition that “at least an initial entry to Australia is made by no later than 6 January 2005”.
In 2006, the mother travelled to the Country L alone to complete a doctorate. The father remained living in Country E. In October 2006 the parties’ first child, B was born in the Country L. B is a dual Country E and Country L citizen. At some point the parents applied for permanent residence in Australia for B, which was granted.
The parents incorporated a company, H Pty Ltd in New South Wales in August 2009.
The parents’ twin children were born in 2009 in Sydney. The twins and are dual Country E and Australian citizens and travelled on Australian passports on the return trip to Country E in November 2009.
After returning to Country E in November 2009 the mother took four months maternity leave and then returned to work. She resigned from that employment in March 2011 and from this time was the full time carer for the three children.
In early 2012, the father resigned from his position as a government spokesperson in order to contest an election for political office in Country E.
On 26 September 2012, the father wrote a letter to the Consul General of the Australian High Commission in support of an application for a Return Residence Visa (“RRV”) for B associated with his permanent residency. B’s original visa had expired and a new visa was required to enable him to enter Australia. As a result of that application B was granted a further RRV.
In December 2012, the father informed the mother that the marriage was over and he left the matrimonial home. The mother says this departure came as a shock to her.
The parties reached a property settlement shortly after the parents’ separation in which the father transferred the former family home and other properties to the mother “for her benefit and the benefit of their children”.
In February 2014, the father commenced Family Law proceedings in the High Court of Country E in relation to parenting. In his application he sought “an order for joint custody and equal visitation of the children”. In order to apply for a divorce, the father was also required to file for a “Judicial Separation”. The judicial separation proceedings are also pending in Country E.
In March 2014, the father was elected to political office in Country E and continues to serve in that position.
The mother filed a Response to the parenting application and judicial separation application in April 2014.
In June 2014, the father wrote a further letter to the Australian High Commission seeking another extension of B’s RRV. In that letter, the father did not mention the parents’ separation or the family law proceedings. That visa was granted and B was required to arrive in Australia prior to 8 September 2016 to take up his permanent residency. The mother’s RRV associated with her grant of permanent residency was due to expire on 20 November 2014.
The hearing of the Country E parenting and judicial separation applications was fixed to occur on 9 October 2014. The hearing did not proceed on that date due to the workload of the court and was adjourned to a future date to be advised.
The parents agreed that the mother and the children would travel to Australia on 16 November 2014 and the mother purchased one-way tickets for their departure on this date. There is a significant dispute concerning the purpose of this travel to Australia and the intended duration of the stay in Australia which is dealt with later in these Reasons.
The parents participated in mediation in an attempt to resolve their proceedings on 14 October 2014. As I understand it, there is a dispute about the outcome of this mediation. A further mediation was to occur on 5 November 2014.
On 5 November 2014, although the mother initially cancelled the pre-arranged mediation, a further mediation was held between the parents in relation to the Country E parenting proceedings. The mother says that the father threatened her during this mediation and that this was part of a pattern of threatening and at times violent conduct by him during the relationship. This is a matter of significant dispute between the parties and is dealt with later in these Reasons.
The mother and the children left Country E later on 5 November 2014. The mother had cancelled the 16 November tickets and purchased new tickets for the departure and the father was unaware of this change in arrangements. The father became aware of the departure of the mother and children while they were en route and made immediate arrangements to come to Australia.
The father travelled to Australia where he spent time between 6 and 12 December 2014 but was unable to make contact with the mother or arrange to see the children. His solicitors sent letters to the mother’s solicitors on 5 December and 8 December seeking that arrangements be made for the children to spend some time with him but this did not eventuate and the father returned to Country E on 12 December 2014. There was further correspondence in December 2014 from the father’s solicitor to the mother’s lawyer. The father also attempted unsuccessfully to contact the mother directly via telephone and email during this period.
The mother found accommodation and employment in Canberra where she continues to reside. The children are attending local primary schools.
This application first came before me on 9 February 2015 when directions were made in relation to the forum hearing. The application was fixed for hearing on 20 March 2015. Orders were also made by consent on that date that the children live with the mother and spend time with the father during the time the father remained in Australia.
On 10 February 2015, I made directions for the parties and children to attend an appointment with a Family Consultant under section 11F of the Family Law Act1975 (Cth) (“the Act”) to assist in the determination of the matter.
A Family Consultant interviewed the parties and the children on 11 February 2015. A Child Responsive Program Memorandum document was prepared for the Court’s assistance by the Family Consultant.
As I understand it, the father spent a few more days in Australia following these Court events and spent time with the children. He then returned to Country E.
The father was present in Australia for the hearing on 20 March 2015 in relation to forum.
Matters in Dispute
There are many significant factual disputes between the parties, some of which require some determination for the purposes of this application. Although it is not the usual procedure for applications such as this to be determined following a testing of the evidence, in this case the parties sought that some cross examination be permitted rather than that there be a summary determination of the matter.
Two of the matters in dispute, being the mother’s assertion that she will not return to Country E even if the parenting proceedings are to be determined there and the circumstances surrounding the arrival of the mother and children in Australia in November 2014, are particularly relevant to the determination of whether it is in the children’s best interests for the proceedings to be determined in Australia or Country E. For that reason, some cross-examination of each of the parties was allowed.
Mother’s refusal to return to Country E
So far as the first matter is concerned, it is the mother’s case that the father has been violent towards her for some time and has also used his political office to threaten and intimidate her. At the time of the hearing, her position was that she was not prepared to return to Country E to contest the parenting application as she feared for her life. The father denies ever having physically abused, threatened or intimidated the mother and says that her claim that she will not return to Country E even if the parenting proceedings are to be determined there, is spurious and should not be accepted.
The first instance of violence the mother alleges against the father was during her pregnancy with the twins [in 2009] when she says that in the course of an argument the father shook her very hard causing the placenta to be disengaged. She says that she was restricted from travelling for six months as a result of this injury.
The mother next says that in 2012 the father assaulted her by pulling her and throwing her onto a couch during an argument. She says that on another occasion in 2012 the father locked her in a bedroom and verbally abused her. Although the father does not specifically address any of these incidents in his affidavit, and the mother was not cross-examined about them, he denies all allegations of violence against him in his affidavit and says they are completely untrue.
The mother also says that the father restricted her movements following their separation from 2012 including on one occasion, evicting her from their office with security guards and escorting her away from him with security guards at a function . On another occasion it also appears that she suggests that the father has been stalking her and may be intercepting her telephone calls. The mother also alleges that the father has threatened her through extended family members.
The mother has other concerns about returning to Country E. She alleges that the father withdrew security guards from the premises occupied by herself and the children and, as she did not have the means to pay for security herself, the family were placed at risk.
The mother also alleges that the father threatened to take the children from her in Country E. She agrees that mediation took place on 14 October 2014 but, as the matter was not resolved, further mediation was to occur on 5 November. She says that she originally cancelled the 5 November 2014 mediation but the father threatened and intimidated her that if it did not take place he would not permit the mother and children to leave Country E.
Since the mother has come to Australia she says that the father has ejected her relatives from her property in Country E, barred the entrance and placed one of his own armed security guards at the entrance preventing anyone gaining access. She says that a complaint she made to the police about these actions was subsequently leaked to the Press.
In her affidavit, the mother says she has no doubt that she would be arrested and jailed if she returned to Country E. She also says that she would not have any property as the father recently applied to have the previous property settlement reversed and the mother’s property transferred to him. She also says that she has no employment prospects in Country E as no person will employ her due to the father’s influence.
On 9 February 2015, directions were made in respect of this application and interim orders were made in relation to the father’s time with the children. The matter was then listed on short notice at 4:15 pm on 10 February 2015 for directions to be made to enable the family to be interviewed by a Family Consultant the following day, prior to the father’s departure for Country E. The mother says that prior to this relisting she received a text message from an unknown person which said “last warning”. She says she traced the international code of the telephone number to Country I in an area adjoining the Country E border. The mother reported this threat to the Australian Federal Police and says that as a result of it she is terrified for her safety should she return to Country E and has made a decision that she will never return to Country E.
The mother agreed under cross-examination that in her Response to the judicial separation sought by the father, she did not ever suggest that he had ever been violent, aggressive or abusive.
The mother remained firm under cross-examination that she did feel frightened of and threatened by the father and said she sought protection as soon as she arrived in Australia. The mother repeated on a number of occasions that she was not going back to Country E and when asked whether she would do so even if that meant “abandoning her children” she said it was not a case of “abandoning her children” but “preserving her life”.
In his affidavit, the father denies ever having been violent towards the mother. He also denies placing the mother and children at risk by cancelling the security staff at the former family home. He said that security officers were removed at the end of 2013 at the mother’s request. He says that he will always ensure that there is appropriate security at the children’s home and denies that there are any safety concerns for the mother or children in Country E.
The father says in his affidavit that the mother has not committed any offence in Country E to his knowledge and challenges her claim that she will be arrested and jailed if she were to return to Country E. Under cross-examination he agreed, however, that he regarded the mother’s removal of the children as abduction. He also says he challenges the mother’s contentions that she will not have any place to live but, as I understand it, agrees that he has commenced proceedings to reverse the earlier property settlement, which transferred the former family home to the mother. The father denies that he will misuse the power of his position in any way.
It is difficult to assess on the limited information available whether the mother is truthful when she says she is fearful to return to Country E due to the father’s past violence, threats and his capacity to intimidate and harm her due to his political position. She was not cross-examined about the violence she alleges though the father denies all such conduct in his affidavit and the opportunity for cross-examination was very limited. She did, however, agree that she had not previously raised allegations of the father’s violence including in her Response to the proceedings commenced by him in Country E. I cannot be satisfied on the limited evidence available that the father has been violent towards the mother, as she alleges.
Although it is contended that there is no basis for the mother’s claim that her safety would be threatened or that she may be arrested and her children removed in Country E, the mother remained adamant that she would not return to Country E even if the parenting proceedings were to take place there because of fears concerning her safety. She was not challenged about having received the threatening text message during the proceedings and having complained about it to the Australian Federal Police.
The father contends that the mother’s assertion that she is never returning to Country E is holding “a gun to the Court’s head” and “holding the Court to ransom”. The difficulty is of course that the mother cannot be “tested” in advance on her assertion that she will not return to Country E.
In circumstances where it is not possible to test the assertions made by the mother about her concerns about her personal safety it is appropriate, in my view, to approach any finding with great caution. Accordingly, while not making any definitive findings about many of the mother’s claims, I am satisfied that she will not return to Country E even if the parenting proceedings are to take place there. The mother was not challenged about her evidence that she is able to participate in such proceedings in Country E through her aunt pursuant to a Power of Attorney. If the proceedings are to take place in Country E, I accept that the mother proposes participating in them in accordance with this procedure.
The arrival of the mother and children in Australia
The second area of significant dispute relates to the mother’s contention that the parties had a long-standing intention to migrate to Australia and that the father had agreed in late 2014 that the mother and children could migrate to Australia alone. She contends that her arrival with the children in November 2014 was in this context. The father disputes both the long-standing agreement to reside in Australia and the specific agreement to allow the mother to relocate to Australia with the children in November 2014.
There is no dispute between the parties that at the time they lived together in Australia from 2000 to 2002, in the words of the father “[they] saw Australia at this time to be our new home”. The parties applied for permanent residency at this stage and that it was granted on 28 August 2004. As noted, the visas were granted with the condition that at least an initial entry to Australia must be made by 6 January 2005.
It is the mother’s contention that over the following years from time to time she and the father had discussions to the effect that there was still a general intention to migrate to Australia. It is the father’s position that he and the mother applied for Australian residency as a contingency that they may wish to take up some time in the future but did not discuss “making Australia [their] permanent home”. The father maintained in oral evidence that once they had been granted residency there was no requirement for he and the mother to actually reside in Australia. He said that their “residency requirements” only required that they had to enter the country within five years of having been granted that residency.
An Information Sheet was attached to the letter from an officer of the Department of Immigration and Multicultural and Indigenous Affairs, dated 28 August 2004 advising that the parents’ permanent residency visas had been granted. It included the following:
Visa Validity
The visas allow for unlimited travel to and from Australia until 28/08/2009. After this date, visa holders must obtain a Resident Return Visa if travelling overseas and wanting to return to Australia as permanent residents (see paragraph on leaving and returning to Australia).
Leaving and Returning to Australia
Any person wanting to travel or remain outside of Australia for a period of time after 28/08/2009 and who is not an Australian citizen, must hold a current Resident Return Visa to be able to return.
It is an individual’s responsibility to obtain a Resident Return Visa after the current visa ceases. Specific criteria apply for the grant of a Resident Return Visa. The criteria are designed to ensure that only permanent residents who have shown a genuine commitment to Australia by either residing in Australia or otherwise making a sound contribution to Australia may be eligible for a Resident Return Visa.
(emphasis added)
There is also no dispute that the parents obtained permanent residency for their eldest child, B. It is not clear when the application for B’s permanent residency was first made, but it appears that it must have been granted some time prior to August 2009. The mother says that in this context when she became pregnant with the twins she and the husband made the decision that they “wanted the children to be born in Australia”. She says they came to Australia in August 2009 with B. The mother rented a property in her name for 12 months near J Hospital where the twins were delivered. This address is given on the twins’ birth certificates as the address of both of the parents. There is also no dispute that the parents made arrangements for one of the mother’s cousins to assist the mother in Australia, in the care of the children at this time. At some time after the family’s arrival in August 2009, the father returned from Australia to Country E and continued working there prior to the birth of the twins. The father returned to Australia and was present when the twins were born in 2009.
There is also no dispute that the parents incorporated a company, H Pty Ltd, in New South Wales on 25 August 2009.
It is also not in issue that 10 days after the twins were born, the parents first became aware that the mother’s sister had died in Country L. The mother’s sister’s death prompted the family’s return to Country E at this time.
The mother says that she and the father made a decision that the family would return to Australia in late 2012. In this context, she says that they found that B’s RRV had expired and a new RRV needed to be obtained. In the father’s letter of support for B’s RRV application dated 26 September 2012 addressed to the Consul General of the Australian High Commission in City K the father wrote the following:
Ref: Application for Returning Resident Visa for B
Attached, kindly find a RRV application for our son B. I also wish to provide a description of B’s ties to Australia and reasons for his last departure.
1.Reference Question 25
a. My wife [Ms Mankus] and I are permanent residents since 2004 and hold valid RR visas (see copies attached). We are both highly skilled professionals and have both previously worked in Australia. [Ms Mankus] is a registered … in Australia and I hold a doctorate of … from [University F] having lectured there and also worked for [the media].
b. We own a business incorporated in 2009 and we now wish to return to Australia and grow the company. This will help provide more employment opportunities for young Australians who have a passion for the entertainment and tourism industry.
c. B has two siblings who are Australian citizens [C] and [D] (see copies of passports attached).
2.Reference Question 33 and 34
a. In August 2009 [B] and his mother [Ms Mankus] returned to Australia but had to leave abruptly following the tragic death of [Ms Mankus’] sister in … 2009. (see death notice attached).
b. Since [Ms Mankus] had also delivered twins in Sydney in November 2009, it became difficult for them to return to Sydney immediately and as a family we decided to delay the return to Australia.
Kindly advice on any additional information your office requires. We look forward to returning to Australia.
(emphasis added)
The parents separated two months after this letter was written.
The mother says that in 2013 after the father was successfully elected to political office they had further discussions about migrating to Australia and agreed that the children and mother would migrate to Australia in 2014 prior to the expiration of the mother’s entry visa on 20 November 2014. The twins were Australian citizens and did not require a visa to enter Australia, as they held Australian passports. At this stage, B’s visa had again expired.
The father wrote to the Consul General at the Australian High Commission in City K again seeking a further RRV for B. The mother says that this was pursuant to the agreement they had reached and would enable her and all three children to migrate to Australia before the November deadline. The father says that the purpose for which he wrote this letter seeking a visa for B was so the mother and the children could have a holiday in Australia. He said that his plan was to join the family in mid-December 2014. These entries to Australia he contends were to maintain permanent residence. He says he wished to keep the family’s options open for the future as it is a difficult process to obtain residency in Australia and he did not want to lose it.
In the letter to the Consul-General of the Australian High Commission on 13 June 2014, the father wrote:
Ref: Application for Returning Resident Visa for B
Attached, kindly find a RRV application for our son [B]. [B] was granted a RRV (Class BB) subclass 155 on 1st October 2012. However, my family was unable to return to Australia as expected due to my election [to political office].
My wife, [Ms Mankus] holds a valid RRV and B has two younger siblings who are Australian citizens. We humbly apply for B’s RRV once again to enable them return to Australia later this year.
In response to
1.Question 25
a. My wife [Ms Mankus] is a permanent resident since 2004 and holds a valid RR visas (sic) (see copy attached).
b. [Ms Mankus is a registered [professional] in Australia with current registration.
c. [B] has two siblings who are Australian citizens [C] and [D] (see copies of passports attached).
2.Question 28
a. In August 2009, my family returned to Australia. We subsequently had twins born in … 2009 but due to the tragic demise of [Ms Mankus’] sister, we decided that she and the children return (sic) to [Country E] in late November of 2009.
b. They had expected to return to Australia in early 2013 but circumstances changed once again with my election [to political office].
I have now settled into my office and humbly request your assistance. Kindly advice (sic) on any additional information your office requires.
(emphasis added)
There is no dispute that both of the parents were aware that the mother and children were to leave Country E on 16 November 2014 and that the mother had purchased one-way tickets. There is also no dispute that the mother did not inform the father about her change in plans and he was unaware of those plans at the time the mother and children left Country E on 5 November 2014.
The mother maintains that she intended migrating to live permanently in Australia in November 2014. It is not clear however whether she contends that when she departed on 5 November 2014 she and the father had agreed that she and the children were to reside permanently in Australia. Her affidavit only addresses the change in plans from the agreed departure date of 16 November to the actual departure date of 5 November 2014 in a limited way. She says that on 5 November 2014 the father threatened her that “unless he could get his way he would block [her] move”. She says that she was fearful that he was attempting to block her move to Australia so she “immediately gathered the children together, packed bags and left [Country E]”.
The Memorandum to the Court by a Family Consultant following interviews of the parties and children on 11 February 2014 contains the following:
Both parents confirmed that there had been an agreement for [Ms Mankus] and the children to come to Australia for a holiday. [Ms Mankus] indicated that she left in the way she did because she felt threatened that her liberty would be curtailed and that [Mr Matulis] would take hers and the children’s passports.
…
[B] presented as somewhat anxious and wary of the Court environment. He indicated that he did not know that he was coming to Australia until the night he left [Country E]. He said that it was “a big surprise”. [B] said that he thought he was coming to Australia for a “short time, but it’s a long time”.
…
[C] indicated that she did not know that she was coming to Australia until the day she left but then said “yes I did”. She indicated that she knew that she was going to live in Australia but said “Daddy didn’t know”.
…
[D] said that he came to Australia “when it was my birthday” and said that it was “a big surprise”. He did not appear to know why he came to Australia.
…
He [D] does not think that his father knew that he was going to Australia and said that he has not spoken to his father about that.
…
In a further affidavit filed on the day of the hearing, the mother denied having informed or suggested to the Family Consultant that she was travelling with the children on a planned holiday to Australia and said that she maintained at all times that the move was part of the long-term purpose for her and the children to reside in Australia.
Under cross-examination the mother confirmed that she had not told the children’s schools in Country E that the children were not returning when she departed and said that she was going to wait to the last week to let the schools know. She also agreed that she did not make any enquiries about schools, employment or accommodation in Australia in advance but said that she has previously lived here, knew it was easy enough and she “did it [made the arrangements]”. There is no dispute that within a short period of arriving in Australia the mother had found employment and accommodation and had enrolled the children in school.
The mother agreed under cross-examination that in the response to the father’s Notice of Motion seeking the return of the children to Country E, sworn on her behalf by her aunt who held Power of Attorney, she said that the reason she had booked a one way ticket was because the father had not given her enough money. She also agreed that she said that she left the family home so that it could be empty for a short period for the purpose of repairs being carried out. She also agreed she surreptitiously left the country without the father’s knowledge because of his threats.
In his affidavit the father said in two places, “at no time did [he] and the mother make a decision to relocate and live in Australia”. Under cross-examination he agreed that he and the mother had considered making Australia their home in 2002. He also agreed that the only reason he had applied for permanent residency was for the purpose of coming to live in Australia.
The father denied that there had ever been a discussion in 2012 about moving to Australia in the event he was not elected to political office. He also did not agree that he intended to create the impression in his letter to the Consul General of Australia in September 2012, that the families’ travel to Australia in 2009 was a permanent move.
It is also difficult to make a final determination concerning the parties’ discussions and alleged agreement over the years about their intentions to reside in Australia and, in particular, whether such an agreement was reached prior to the mother’s proposed departure on 16 November 2014.
In my view, the clear inference from the letters written by the father on 26 September 2012 and 13 June 2014 to the Australian High Commission in relation to B’s visa is that some or all of the family intended returning to live in Australia. In the first letter of September 2012, the father said “we look forward to returning to Australia” (emphasis added). In the second letter written in June 2014, the father says the application for a RRV is to “enable them to return to Australia later this year” (emphasis added). In my view, the context of latter letter indicates that the word “them” refers to the mother and children only. This is consistent with the mother’s case that the arrangement was for she and the children to migrate to Australia.
However, the mother’s failure to inform the children’s schools that the children were not returning when she departed, the contents of her Response filed in Country E and the information given by the children concerning their understanding of the trip to Australia, tend to support the father’s version. It is simply not possible in my view, given the limited testing of the evidence to make a definitive finding about the circumstances under which the mother and children arrived in Australia in November 2014.
The Law
The Full Court decision in Zanda & Zanda[1] sets out the principles to be applied in an application such as this as follows:
[1] [2014] FamCAFC 173
106.The correct test for determination of forum when dealing with children’s issues has not been in doubt since ZP v PS (1994) 181 CLR 639 at 660 where Brennan and Dawson JJ said:
Once the jurisdiction conferred by s. 63 of the Family Law Act 1975 (Cth) (“the Act”) on the Family Court in custody proceedings is effectively invoked — and there is no doubt that both parties invoked that jurisdiction in this case — s. 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.
107.As the Full Court clearly stated in Pascarl & Oxley (2013) FLC 93-536:
65. The question of which forum of two competing fora might be the appropriate place for the matter to be determined is subject to a number of now well-settled authorities.
…
108.After considering the authorities the Full Court in Pascarl & Oxley said:
86. …the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
(emphasis in original)
It was initially submitted on behalf of the mother that there is no distinction between the best interests of these children in relation to forum and the best interests of the children “at large”, which I understood to mean that I should in some way apply the best interests considerations to the respective parenting applications, as I understand them. However, subsequent submissions made on behalf of both parties were directed to the enquiry in relation to the best interests of the children in this case, that is whether it is in the children’s best interests in having the parenting dispute determined in Australia or Country E.
The central question for me to determine is whether it is in the best interests of the children for the parenting proceedings to be determined in Country E or Australia.
Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3).
Primary considerations
The benefit of a meaningful relationship with both of the parents
On the uncontested evidence and the facts I have found about the involvement of each of the parents in the children’s lives, the children will undoubtedly receive a benefit from having a meaningful relationship with both of the parents.
The parents have been unable to agree about the future parenting of their children so parenting orders need to be made by a court in Country E or Australia. Such orders can only be made in Country E if the children are physically present in that country.
I am satisfied that the mother will not return to Country E even if the children are returned there for the purposes of the proceedings. She has the capacity, which she intends to use, to participate in any proceedings in Country E through a representative appointed under a Power of Attorney. In these circumstances, if the children were to be returned to Country E for the proceedings to be determined there, they would be deprived of the benefit of a meaningful relationship with their mother for as long as the proceedings are pending. There is no basis upon which I could conclude that it would be in the children’s best interest for them to be deprived of the benefit of a meaningful relationship with their mother, who on both parent’s cases, has been their primary carer throughout their life, especially when it is not known how long the matter would take to be determined in Country E.
As I have indicated to the parties, arrangements can be made in this registry for parenting proceedings to be heard as early as the first week in June in a matter such as this, where there is significant urgency for those proceedings to be determined. While the father will experience some inconvenience, he has indicated he is in a position to come to Australia at any time if the proceedings were to be determined here and to spend time with the children on four days notice. Accordingly, the children would continue to receive the benefit of a relationship that is meaningful, being one that is “substantial” or “of importance”[2] with their father, in the event that the parenting proceedings were to be determined in Australia.
The need to protect the children from harm from being subjected to or exposed to abuse, neglect or family violence
[2] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright (2007) Fam LR 518; G & C [2006] FamCA 994.
It is not suggested by either of the parties or the Independent Children’s Lawyer that there is a risk that the children will be exposed to harm of this type if the parenting proceedings are determined in either Australia or Country E.
Additional considerations
Children’s views
The children quite properly have not been asked to express a view about the forum in which the proceedings related to their parenting should be determined. They have been interviewed however, by the Family Consultant and the interviews have provided some information which is relevant to the issue to be determined. Each of the children is comfortable living in either country and has positive things to say about both parents. None of the children are comfortable with the prospect of being separated from their mother, which would occur if the proceedings were to be determined in Country E.
The Family Consultant included the following in her Memorandum to the Court in relation to the children’s views:
[B] indicated a closer relationship with his mother than with his father …
…
[C] said that she would miss her father if he lived in [Country E] and if she stayed in Australia. [C] believes that [D] and [B] would miss him too.
…
[D] said that he would miss his father if they lived in different countries. He said that when he lived in [Country E] with his mother, brother and sister he did not see his father “very much”.
The Family Consultant said:
Given the children’s ages and lack of cognitive ability to understand the long term implications of decisions made today upon their futures, no weight should be given to their opinion about where they want to live.
In the circumstances, I attach no weight to the children’s views in relation to the question of forum.
Nature of the children’s relationships
The parties agree that the mother has been the primary carer for the children and that the father has also had a significant involvement in their life.
Each of the children spoke about both of their parents in positive terms to the Family Consultant. The Family Consultant also expressed the view that:
[B] indicated a closer relationship with his mother than with his father, and suggested that she “takes care of us more than Dad, but I still love Dad”.
The Family Consultant also briefly observed the children upon arrival and departure with their parents and there was a further observation of the father interacting with the children on his own. The Family Consultant was of the view that the children appeared comfortable in the presence of both parents.
There has been no assessment of the nature of the relationship of the children with any other persons.
There is insufficient evidence available to consider the extent to which each of the parents has taken the opportunity to participate in making decisions about major long-term issues and spent time with and communicated with each of the children.
Likely effect of change in circumstances
In my view, the most critical consideration relating to the children’s best interests in this matter is the likely effect of any change in the children’s circumstances in the event that that the matter is heard in Country E. It appears that in order for the Country E court to exercise jurisdiction the children must be physically present in that country, which would mean that the children would have to return and once again live in Country E.
It is not clear how long it will take for the proceedings to be determined in Country E, but if the history of adjournments given in the related proceedings is a guide, then these proceedings may be very protracted. It is to be remembered that the applications which were fixed for hearing in October 2014 in Country E were adjourned due to the court’s caseload and a new hearing date has not yet been fixed.
It is submitted on behalf of the Independent Children’s Lawyer that the details of the children’s living arrangements in Country E are unknown. It is not clear where the children would live and what arrangements the father has made for their care in the event that they reside with him in Country E while the proceedings are being determined.
Up until the forum hearing the father seemed to assume that this court may have the power to require the mother as well as the children to return to Country E. It also seems to have been assumed by the father that if the mother were either ordered to return to Country E or if she voluntarily returned she would continue to have the children live with her and care for them in Country E.
The father’s application at all times has been that the children live with the mother, whether in Australia or Country E. The father seemed to only turn his mind while giving oral evidence to the possibility of seeking an alternate parenting order. He said “it’s new to me she is not coming to Country E”, “I only just found out”. The father then gave evidence that he would seek alternate orders in Country E that the children live with him and that the mother have “visitation rights” to the children.
The Family Consultant records in her Memorandum to the Court that “the children appear to have become used to spending inconsistent time with their father. They have not spent significant periods of time away from their mother”.
The Independent Children’s Lawyer also submits that if the children were returned to Country E as a result of this application and it were determined in those parenting proceedings in Country E that the children should live with the mother in Australia, there would be yet another change in these children’s living arrangements. At the time of the hearing this appeared to be the more likely outcome given that both the mother and father’s then current applications in Country E are for the children to live with the mother, though the father did seem to reconsider this position in the course of giving his evidence.
If the children were to remain in Australia for the parenting hearing and the mother were successful, there would be no further change in the children’s circumstances. If the father were successful, then one further change in the children’s circumstances would occur in the future. As there is potential for the children’s circumstances to change two more times, if the matter were determined in Country E and one more time if the matter were determined in Australia, then there is less risk of the children’s circumstances being disrupted if the parenting proceedings were to be determined in the Family Court of Australia.
As indicated in relation to a number of the other considerations, given that the mother has been their primary carer throughout their life but does not intend to return to Country E, close consideration should be given to the impact upon the children of separation from the mother. On the basis of her interviews, the Family Consultant says the children “have not spent significant periods of time away from their mother, and if that were to occur, they are likely to experience grief and loss. If the children were to be separated from Ms Mankus at this stage, the short and long term impact is likely to be detrimental”.
Each of the children expressed that they would miss their father if they lived in a different country to him. However, at this stage the court is only considering the likely effect of changes including separation while the proceedings are pending.
Practical difficulty and expense of the children spending time with one of the parents
There would be some significant practical difficulty and expense associated with the children spending time with their father if the parenting proceedings are to be determined in Australia. However, given that the Court would be able to hear the matter in the Parramatta Registry within a matter of months, that practical difficulty and expense would be limited to that period of time.
If the children are returned to Country E for the parenting proceedings to be determined there, there would be insurmountable practical difficulty and expense associated with the children spending time with their mother, if the mother acts as she says she will and does not return to Country E for the proceedings. This will, in my view, substantially affect the children’s right to maintain personal relations with their mother, though there seems no reason why they will not be able to communicate with her by telephone or electronic means.
Capacity of parents
There is no evidence at this stage to suggest that either of the parents is not capable to provide for the needs of the children in this matter.
Maturity, sex and lifestyle of the parents
The children to whom these proceedings relate are Country E and have been raised of the majority of their life in Country E. They have no access to their Country E culture and traditions currently other than through their mother while living in Australia. This issue is likely to be of considerable significance in the determination of the parenting proceedings, but is not determinative in my view, or particularly weighty, in this application in relation to forum.
Attitude to the responsibilities of parenthood
I cannot make conclusive findings at this stage that either parent has not shown an acceptable attitude to the children or to the responsibilities of parenthood.
Family Violence
There are allegations that the mother was a victim of family violence perpetrated by the father, but it is not clear whether she asserts the children were exposed to it. The children suggested to the Family Consultant that they have been exposed to verbal conflict between the parents since they have been in Australia. This verbal conflict is in my view likely to continue until the proceedings are determined, regardless of where that is to occur. It is hoped that the parents will protect their children from exposure to this conflict now that they are aware the children have commented on it to the Family Consultant.
Other relevant factors
As indicated, the parenting proceedings could to be determined in Australia within three months, but it may be a protracted period of time if the proceedings are to be determined in Country E.
It was also submitted on behalf of the mother, at the commencement of the proceedings when she sought to have them adjourned, that the parties could arrange to have a Family Report prepared privately and that interviews were available in April 2015. It is anticipated that the Report would be ready for the available dates in June 2015.
No evidence has been adduced concerning the law of Country E in relation to parenting proceedings. In Killam and Loeng[3] the majority of the Full Court suggested that it is not a requirement in determining the issue of forum of parenting proceedings for there to be a “detailed examination of foreign law”.
[3] [2015] FamCAFC 41, [155] – [157].
No concerns have been raised by either party that they will be unable to conduct the parenting proceedings in either Australia or Country E. Although the mother says that she will participate through a representative holding Power of Attorney, no evidence has been given about the availability or use of technology to ensure the mother would be able to participate in a more meaningful way in the Country E proceedings or be cross examined. The father will experience some inconvenience if the matter were to be heard in Australia, especially as all of the witnesses upon whom he relies live in Country E. However, the father is freely able to travel and technology available in the Family Court of Australia may be utilised to allow witnesses to appear by Video Link and with the assistance of interpreters.
Conclusion
I take into account the various best interests considerations and attach particular weight to the primary consideration of the children receiving the benefit of having a meaningful relationship with both of the parents. I also attach particular weight to the likely detrimental effect upon the children of the change in circumstances that would come about in the event that the proceedings are dealt with in Country E. In circumstances where the parenting proceedings are able to be determined within eight weeks in this Registry but it is unknown when they will be determined in Country E, I am of the view that it is in the best interests of these children for the parenting proceedings to be determined in the Family Court of Australia.
For these reasons, I make the orders sought by the mother.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 April 2015.
Legal Associate:
Date: 1 April 2015.
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