Marta and Marta

[2009] FamCA 1380

FAMILY COURT OF AUSTRALIA

MARTA & MARTA [2009] FamCA 1380

FAMILY LAW – CHILDREN – Overseas travel

APPLICANT: Mr Marta

RESPONDENT: Ms Marta

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1340 of 2009

DATE DELIVERED: 18 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 18 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hauseman

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Somerville & Co Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Sperling,

Legal Aid NSW

Orders

1. That the husband’s application for the parties’ children to travel to Switzerland at Christmas 2009-2010 is hereby dismissed.

2. That an updated or a final single expert’s report is to be prepared by Dr Q and that the parties are to cooperate with her to the extent that she feels necessary for preparation of that report

3. That on completion of the report the report be forwarded to my associate for determination by me on whether or not the report should be released.

4. That the matter is not to be re-listed before me until after a date by which the parties inform my associate the report can be prepared.

5. That the matter be stood over stood-over to be re-listed for a further five days hearing, part heard.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1340 of 2009

MR MARTA

Applicant

And

MS MARTA

Respondent

And

LEGAL AID NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an interim application by the husband for orders which will allow him to take the parties' three sons, aged between about three and a half and nearly eight, to Switzerland for two weeks at Christmas.  The children have lived with their parents in Switzerland for more than a year and are familiar with their paternal grandparents, with whom they would live with their father while they are in Switzerland at Christmas.  The father wants to take them there for three weeks.

2. His purpose was stated succinctly, and in my opinion it was the type of purpose one would expect. It was simply because the children haven't seen the husband's father for eight months and they are said to be close to him;  they haven't seen some friends they made while they were in Switzerland;  they have not seen much of their paternal grandmother since they came to Australia in January of this year;  and, they would be able to have fun in the snow, something which the evidence indicates they enjoyed while they were in Switzerland on the last occasion they were there. They were living there permanently at the time.

3. The wife opposes the return.  She says that the children are settled in Australia and to take them back to Switzerland will unsettle them; that the youngest child, being only three and a half, will be away from her for too long;  that the children have never travelled anywhere for any long periods without her and, in fact, have never been away from her for more than a three day period.  But her main fear is that the husband will not return with the children.  There are serious fears that she says she has in addition to these about indoctrination and alienation of the children by the father.

4. The wife's claims about the children being away for too long seem to me to be exaggerated.  She, in her amended application filed only a few days ago, concedes that the children should be able to spend single weeks at a time with their father in the event that their father relocates to Switzerland, as he says he will do whether or not he gains residency of the children.  She concedes that, if she gains residency, the husband should be able to spend two-week periods in Switzerland with the children as well as two-week periods in Australia with the children.

5. This application also appears to indicate that her fears about non-return are not as great as she claims they are.  However, it must be conceded that, whereas her amended response filed on 10 September 2009 indicates a certain lack of fear about allowing the children to travel to Switzerland if she is granted residency, the material that she now knows about and only learnt of in the last day or two is of a nature which might increase her fears about non‑return.  I shall return to it.

6. It is important to recognise that in determining what orders should be made in interim proceedings the Court can only rely upon facts which are not disputed, otherwise the Court must rely upon the respective allegations and the prospects that they will be held to be valid. 

7. The allegations that appear to me to be of relevance are these:  firstly, Dr Q has seen the children with each parent and with each of the maternal grandparents.  She has provided a report which was for the purposes of an interim hearing but not this interim hearing.  As a result of the need for that report she received only the husband's documents when she made the report. The force of the report is prima facie weakened because of that. However, one aspect of it which does not seem to be weakened is her actual observations. Her observations were that when she saw the children with the parents and the respective grandmothers all children appeared to be more closely attached and comfortable with the husband and his mother than the wife and her mother.  Accordingly, it is likely, when the matter is finally heard, that a judge will find that when she did see the children for the purpose of making the report, which is now in evidence, she actually did experience that situation and come to that conclusion, although that is still open to challenge by the wife.

8. Another fact which does not appear to be in dispute is that the parties are also engaged in a property dispute.  Their property consists virtually entirely of cash deposited in banks in Australia in circumstances where that cash can only be withdrawn with the consent of both parents.  The situation is that, in the event that the husband took the children to Switzerland, and did not return them in accordance with any orders the Court might make, that cash could be made available to the wife to pursue their return in Switzerland if cash is needed for her to do so. More importantly, and I think much more importantly, the husband would be put in the invidious position that he would have been in contempt of the Court's orders by not returning the children and would have to return to Australia if he wished to conduct proceedings with any real prospect of success or wish to continue the proceedings over the parties' property. The Court could make an order which would allow the wife to have access to such of the cash which it felt she was entitled to, pursuant to section 79 of the Act, without the consent of the husband.

9. The amount of cash in Australia is very substantial, slightly more than $1 million. The wife's case is that the husband is very, very single-minded and strong-willed and is controlling and domineering and that, in effect, he will stop at nothing to get the children to Switzerland and that he is obsessed with that idea.  So much so that it is said that he could not when giving evidence in the principal proceedings - and I should note that his evidence is not completed yet - contemplate the possibility that he will not be able to return to live with the children permanently in Switzerland.

10. The principal case is among those that are called relocation cases.  The husband says that he will return to Switzerland whether or not he gets residency of the children.  The wife seeks residency too.  She says that she will live in Australia if the children are permitted to live with her here but otherwise is prepared to live in Switzerland.  If a grant of residency of the children to her is conditional upon her returning to live permanently in Switzerland, she will do so, and, if the husband gains residency, she will move to Switzerland so she can have appropriate contact with the children despite the fact that she regards it as likely to harm her psychologically and to substantially undermine her life in general.

11. One would think that the problems that confront the Court are easily solved because Switzerland is a signatory to the Geneva Convention on the international abduction of children, and because of the amount of money that remains in Australia.  The Court could increase the likelihood of the children being returned at the appropriate time to Australia by making it a condition of the husband being allowed to take the children on this two-week holiday that he consent to an interim order granting residence of the children to the wife, and that that would thereby ensure that the wife would have rights under the Hague Convention to seek the return of the children to Australia.

12. However, counsel for the wife has pointed out that, of all countries, Switzerland has a very poor record relating to return of children under the Hague Convention despite it being a signatory to it.  The Independent Children's Lawyer has tendered a document which to me is of considerable significance.  It is an article written by the head of the socio-legal sector of the Swiss Foundation of the International Social Service - which appears to be a government or a government-related organisation - about the effect of the Hague Convention in Switzerland. It points out that in Switzerland there have been cases where most inappropriate delays have occurred in restoring children to their parents where there are Hague Convention cases. The article is one which is laudatory of a recent legislative change in Switzerland.  It says, in effect, that whereas in the past there have been considerable delays in implementing or in determining Hague Convention hearings in Switzerland, that is applications under it for the return of children to other countries, now because of this legislation the delays will be less. It attributes the delays to the conflict between Swiss law and the requirements of the Hague Convention and recognises that Swiss law previously has been slow in its implementation because of the Hague Convention, and that delays in determining Hague Convention matters would no longer be such a problem because with the new legislation the local courts in Switzerland can virtually ignore the Hague Convention. 

13. This does not instil any confidence in this Court, if the husband takes the children to Switzerland and decides not to return them, that because Switzerland is a signatory to the Hague Convention there will be little delay in the return of the children.  

14. I must decide these proceedings based upon the usual requirements of the Family Law Act, so I shall now consider those.  By section 60B the objects of the Act, and therefore the obligations of the Court in administering the Act, as well as the underlying principles, are stated quite clearly, I shall endeavour to uphold those objects and apply those principles. 

15. The object firstly is to ensure that the children have the benefit of both parents being involved in a meaningful way in their lives as far as the best interests of the children will allow. In this particular case, at the moment, there are orders in place which are enforceable in Australia and being complied with by the parties which give the parents, in the interim before final determination, significant time with the children.  My recollection of the amount of time that the parents spend is that the wife has the children for a little more than 50 per cent of the time and the husband has them for a little less than 50 per cent, therefore that object is currently being upheld.

16. The next object of the Act is that the children are to be protected from physical and psychological harm and are not to be exposed to abuse, neglect or family violence.  Well, the parties are now separated.  The cause of any previous abuse or family violence - no neglect is alleged - on the allegations of each party has now been largely eliminated because the parties are no longer living together and they are protected from physical harm for the same reason. However, they are protected from psychological harm because they are able to spend small periods of time in each instance in an alternating fashion with each parent, thereby not being subject for long periods to the influence of one parent rather than the other.

17. A two or three week stint in Switzerland, in my view, would make little difference to that despite the fact that the wife alleges that the husband would try to alienate the children against her and influence them against her.  After all, an extra 14 days, if the husband is trying to do that, would not make a great deal of difference.  An extra 14 days in three-day blocks would soon achieve the same thing or could achieve much the same thing while the children were with the husband.

18. One of the problems is that, in the event that the husband does not return the children, if what the wife says is true, the children really are likely to be subjected to psychological harm by being alienated from the wife or indoctrinated with the husband's views of her.  After all, it virtually follows that if the husband is the type of person who would not return them, the wife's allegations about him are likely to be true.

19. The next object is to ensure the children receive adequate and proper parenting so they can achieve their full potential.  That would involve much the same problem as I have just referred to.  Any undermining of their psychological health will stop them from achieving their full potential.

20. The final object is to ensure that the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.  Much the same can be said about this.  The real issue here is whether the children's psychological condition will be undermined by spending two weeks in Switzerland or such other time as the husband might detain them there?  The answer is, if he does retain them, that is probable;  if he does not retain them, it is highly unlikely.

21. The principles that have to be dealt with which underline these objects are also important.  The first is that the children have a right to know and be cared for by both parents.  If the children are detained in Switzerland their right in respect of the wife’s care will be undermined, or may be undermined at least, until a Swiss court determines the issue. 

22. The next object is to ensure the children have a right to spend time on a regular basis and communicate with both parents and other people significant to them.  There is no doubt that the mother is a person that the children should spend regular time with and the maternal grandmother is significant to their care.  In the event that the children were to be detained in Switzerland, there would be an undermining of the ability to uphold this object of the Act, as there would be, on detention in Switzerland, of the ability of the parents to jointly share the duties and responsibilities of caring for the children.

23. The only other relevant object here is that of culture.  The children have both an Australian and a Swiss background and are entitled to understand both cultures.  If the children are detained in Switzerland they will not be able to understand much about their Australian culture.  If the children are returned to Australia as a result of interim orders, they will in all likelihood have the benefit, at least until final orders are made, of being able to exercise their right to enjoy both cultures.

24. One must regard, in proceedings of an interim nature, the children's best interests as being paramount just as they are in final proceedings.  Also in interim proceedings, because they are parenting proceedings, the Court must take into account section 65DAA of the Act.  Because what is being dealt with is a three week period at the most, a consideration of section 65DAA of the Act is of no practical importance and cannot make a difference, in my view, to the outcome of the interim application However, the Court must consider the relevant parts of section 60CC in deciding what is in the children's best interests.

25. There are two primary considerations.  Of those, the first is the benefit of the children having a meaningful relationship with both parents.  In my view, to allow them to have a two-week or three-week holiday in Switzerland would advance their ability to have a meaningful relationship with their father, without undermining their ability to have a meaningful relationship with the mother, unless the father fails to return them.  

26. The other primary consideration is the need to protect the children from physical and psychological harm or being subjected to abuse, neglect or family violence.  They are not likely to be subjected to abuse, neglect or family violence or exposed to it by a two or three week holiday in Switzerland.  But, if the result of allowing the children to go on this holiday to Switzerland means their non-immediate return in accordance with orders, they may well be subjected to psychological harm and therefore would not, by such orders, be being protected from it.

27. The other considerations that I have to take into account are firstly the children's views.  These are clear.  I think it is not even suggested in relation to the two older children by the mother that they do not want to go on this holiday.  The mother suggests that the youngest child, the three and a half year old, does not wish to go because he has resisted being collected by the paternal grandmother only recently when the grandmother went to collect her from one of the mother's friends while the mother was at court or doing something else. 

28. That does not indicate that the children do not want to go with their father on this holiday. The chances are that a finding would be made in final proceedings that they are more attached to the father, for the reasons I have already referred to relating to Dr Q’s observations.

29. The next matter to be considered is the nature of the children's relationship with each parent and other important persons.  I have already referred to that.  At this stage, all I have to go on is the claim by the husband that Dr Q says that the children are more attached to him and his mother than the wife and her mother.  The wife suggests otherwise, but there does not seem to be a lot of evidence to support her claim, although I am not rejecting it because I'm not in a position to determine the facts.

30. I should also mention that there is evidence that the children are close to the paternal grandfather who is still in Switzerland, and it is to be recalled that it is one of the husband's objects to take the children on the holiday so they can see their paternal grandfather who they have not seen since January of this year when they returned to Australia to live permanently.  I should mention that the parties separated only days after their return.

31. The next matter that I have to consider is the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  Each parent, in effect, alleges the other is unwilling to do this.  I am not in a position to determine the willingness of either at this stage.

32. The next issue is the likely effect of any changes in circumstances, including the effect of separation from either parent or some other person of importance with whom they have been living.  A two-week holiday in Switzerland is likely to improve the children's relationship with their father and paternal grandparents and is unlikely, in my view, to cause an undermining of their relationship with the mother or her mother. 

33. I think that three weeks is too much for the youngest child.  He is only three and a half and he may be affected by three weeks away from his mother, even though he is said by Dr Q to be more closely attached to his father.  Of course, if the separation is longer by any failure to return the children, the children are likely to be adversely affected by separation from the maternal side of their family.

1. The practical difficulty and expense of a child spending time with and communicating with a parent while it will be away is minimal provided the children are returned at the end of any allowed holiday period.   

2. The capacity of each of the child's parents and anyone else to provide for the needs of the child, including emotional and intellectual needs, is also a matter that should not be relevant in an application to take the children away to Switzerland for three weeks by the father, in circumstances where it is likely to be held ultimately that, at this time in the children's life or only a few months ago, the children were closer to him and his mother than to the wife and her mother. 

3. It is the wife's allegation that the father, in effect, does not have the capacity to provide for the children's needs to have a proper relationship with the wife and grandmother because she alleges that he will not return the children to Australia after the holiday period is up. She further alleges that he will stop at nothing to make sure the children live in Switzerland despite the harm that it will do to the wife's psychological wellbeing.

4. The children's maturity is relevant only in that the youngest, the three and a half year old, is, in my view, too young to be separated from either parent for significant times if that can be avoided.  In those circumstances, three weeks away from the mother, and possibly her mother, may be harmful to his image of his mother and grandmother, because he will not understand that he will be reunited to them because three and a half year olds have no realistic concept of time.

5. The attitude of the parents to the child and to the parental responsibilities is a matter that is hotly in dispute in the sense that each says about the other that they have behaved themselves in front of the children in an irresponsible way, although I must say that the type of allegations which have been alleged do not, prima facie, seem to be extremely serious.  At this stage, I could not regard anything that either party has said about the attitude to responsibilities of parenthood as being likely to be relevant to whether or not the children should go on holiday for a three week period to Switzerland, except for the fact that the wife says that the husband is obsessed with taking the children there and will not return them.

6. The allegations of family violence, prima facie, have not been extremely serious and, in any event, the only allegation of family violence really is by the husband against the wife in relation to one of the children and in relation to himself. In those circumstances, the prospect of family violence will not be increased by the children being taken by the husband to Switzerland.  Now that the parties are separated, the prospect of family violence is, in my opinion, not a matter of significance in relation to this application for a three week holiday.  Much the same thing can be said about family violence orders.

7. On the issue of whether or not it would be preferable to make an order that is least likely to lead to the institution of further proceedings, all I can say is that in the event that it turns out that the husband does not return the children there is a near certainty that there will be proceedings between the parents in relation to the children which would otherwise not have been undertaken.  Otherwise, I cannot see that there would be any other reason why any order I might make about the holiday would lead to further proceedings. 

8. There are no other facts that I can think of, either in combination with what I have already considered or with any other facts that might have been put before me, which could alter the circumstances. 

9. Overall, I am most regretful to say that I think that there is a real risk that if the husband takes the children to Switzerland, despite the amount of money involved and remaining in Australia, he will find it very attractive to refuse to return them and rely upon a hope that Swiss courts will, because of their new legislation, decide the matter and ignore the Hague Convention and the fact that the Swiss Government or Switzerland is a signatory to it. 

10. In the circumstances I am of the view that there is a significant risk of non-return, that that risk is not acceptable, and that it would be contrary to the children's best interests, considering all of the matters, if the children were not returned. In those circumstances I should and shall refuse the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              2 August 2010