Mori and Sade
[2012] FMCAfam 1400
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORI & SADE | [2012] FMCAfam 1400 |
| FAMILY LAW – Interim arrangements for parenting of children aged 11, 9 & 7 – high conflict between the parties – husband wishes to take children on holiday to Bali for approximately three weeks in January 2013 – wife opposes overseas travel for children particularly to Bali given Australian Government warnings – husband has arranged holiday without reference to wife – wife asserts that the husband has behaved disingenuously – matters to be considered in respect of overseas travel – best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 64B |
| Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Gin & Hang [2010] FamCA 617 Fredericks & Carrigan [2012] FMCAfam 663 |
| Applicant: | MR MORI |
| Respondent: | MS SADE |
| File Number: | ADC 1454 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 11 December 2012 |
| Date of Last Submission: | 11 December 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Martin Robinson |
| Counsel for the Respondent: | Ms Read |
| Solicitors for the Respondent: | Lamont Black Lawyers |
ORDERS
The final hearing before Federal Magistrate Brown on 15, 16 and 17 May 2013 at 10:00am is confirmed.
On or before 18 April 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 16 April 2013.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 2 May 2013.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 22 March 2012.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
UNTIL FURTHER OR OTHER ORDER:
Orders 1, 2 and 3 of the orders made on 10 August 2012 shall continue.
The husband spend time with the children, in addition to the time specified in order 2 of the aforesaid orders as follows:
(a)From 4.00 pm on Christmas Eve 2012 until 2.00 pm on Christmas Day 2012;
(b)During the forthcoming school holiday period (December/January 2012/2013):
(i)between 9.00 am on 5 January 2013 and 6.00 pm on 16 January 2013
(ii)between 9.00 am on 21 January 2013 until 4.00 pm on 25 January 2013.
(c)For one half of each short subsequent school holiday period.
The husband’s school term time with the children as set out in order 2 of the orders of 10 August 2012 will recommence with the children spending the weekend commencing Friday 1 February with the husband.
The husband is permitted to take the children outside of the Commonwealth of Australia for the period between 5 January and 16 January 2013 for the purposes of taking a holiday with the children in the Indonesian Province of Bali.
Prior to 31 December 2013 the husband is directed to provide to the wife in writing details of the children’s travel to Bali in accordance with these orders and the reasons for judgement published herein, including details of the times of departure and arrival of all flights to be taken by the children; flight number and airlines; electronic contact details including telephone numbers and email addresses for the children and the accommodation in which they will be staying whilst in Bali.
The wife have electronic communication with the children, whilst they are outside of Australia pursuant to these orders at 5.30 pm Balinese Time on each of 7, 9, 12 & 14 January 2013 by means of either telephone, email or skype with the husband to instigate the communication to either the wife’s telephone or computer at his personal expense.
IT IS NOTED that publication of this judgment under the pseudonym Mori & Sade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1454 of 2012
| MR MORI |
Applicant
And
| MS SADE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Mori “the husband” and
Ms Sade (formerly Mori) “the wife”. They are the parents of [X] born [in] 2001; [Y] born [in] 2003; and [Z] born [in] 2005.
The substantive proceedings relate to the division of marital property and final arrangements for the care of the three children concerned.
The current proceedings, to which these reasons for judgment relate, concern the husband’s application to take the children on holiday to the Indonesian Island of Bali between 3 and 24 January 2013.
The wife opposes this application, which was formally made on 7 November 2012. Due to the imminence of the proposed holiday, necessity dictates that the matter be determined by the court on an interim or abridged hearing, involving the consideration of affidavit material only.
The issue has precipitated considerable controversy and emotion between the parties. The wife, in particular, sobbed through much of the hearing. She has never been to Bali and understandably regards it with some suspicion as a holiday location for children.
From the husband’s perspective, the case is simple. He wishes to take the children to a resort hotel, in an exotic location, where they will have a good time and be safe. He says it is incontrovertible nonsense to suggest he will remain in Indonesia, with the children, where he has never lived and has no connections.
From the wife’s perspective, the husband’s booking of the holiday is evidence of his selfish and high handed attitude towards her. She was not consulted about the trip and believes it is an inappropriate allocation of scarce matrimonial property resources, which remain subject to the final adjudication of the court.
She has other objections to the trip. In her view, the children will be too long away from her, given their ages, if the holiday is three weeks in duration. In addition, she is concerned that the husband will not be able to adequately supervise the children over such a long period.
Importantly, the wife is also mindful of warnings issued by the Australian Government, to its citizens, to “exercise a high degree of caution” in respect of travel to Indonesia and, if possible, reconsider any need to travel to that country.
Fundamentally Ms Sade believes that the trip is unfair to her. At present, she does not have the financial resources to undertake a three week holiday with the children. In these circumstances, she proposes that the husband take a shorter trip, of around one week in length, to an incontrovertible safe location, such as Queensland. Such an outcome would potentially free up sufficient funds to allow her to take her own trip somewhere with the children.
As the hearing before me on 11 December 2012 unfolded, an option of the holiday in Bali being shortened was also raised. The wife was open to considering such an option. However, issues arose regarding the financial implications of either cancelling or shortening the proposed Bali trip and whether any loss entailed would be covered by the husband’s travel insurance.
These reasons for judgment are directed to resolving this emotionally charged dispute between the parties. In determining the outcome, the court must regard the best interests of the children concerned as the paramount or most important consideration.
Background
The wife commenced these proceedings on 20 April 2012. She sought orders that the children live with her and spend time with their father as agreed between the parties or as determined by court order. In addition, she sought a just and equitable division of the assets of the marriage.
On an interim basis, she sought the sole use and occupancy of the parties’ former matrimonial home at Property V and an order for spousal maintenance in the sum of $100.00 per week.
The husband responded to this application on 12 July 2012. It is his position that the three children concerned should live with each of their parents, in what is commonly described as a shared care regime, with the children spending equal periods of time with each of their parents. He had no specific proposals in respect of the property issues between the parties.
The wife was born [in] 1974. The husband was born [in] 1972. They have been involved with one another since the early 1990s and began to live together in 1996.
The parties married [in] 1998. It is common ground that they finally separated on 4 February 2012. At this stage, they remained living under the same roof of the Property V property.
The three children concerned attend [omitted] Primary School and each enjoys good health. The wife’s position is that she has been the children’s primary carer since the date of birth of each child.
Ms Sade has deposed that Mr Mori has an explosive temper and exhibits extreme mood swings. She alleges that he has damaged walls, when angered. In addition, she asserts that he has been controlling of her behaviour and unnecessarily inquisitive about her past relationships.
The husband acknowledges that his behaviour has been found wanting in the past. However, comparatively recently, he was diagnosed with Hashimoto’s thyroiditis, which affected his temper. It is his position that this condition is amenable to treatment and he has been compliant with the treatment prescribed for him. As a result he asserts that his temperament issues have been successfully resolved.
The wife does not necessarily accept that this is the case. It is her position that the husband’s anger issues were a major factor in bringing about the end of the marriage to an end and he has behaved in an aggressive way since the parties separated. Certainly it seems clear that the parties’ relationship is not currently an easy one.
Mr Mori is a [omitted] by occupation. Ms Sade does not have any formal qualifications. However, the two work together in a [business omitted] which they owned. Mr Mori did the [omitted] whilst Ms Sade was involved in the management of the business and [omitted]. The parties continued to work together in the business following their separation.
The wife asserts that the husband has taken over responsibility for banking the businesses daily takings and does not account to her for them. The husband denies that he is hiding business moneys from the wife. Rather, he asserts that the wife, prior to separation, managed the businesses affairs incompetently.
At this point, I am unable to resolve this issue, on the basis of the limited evidence available to me. However, it would appear axiomatic that this conflict about financial matters, when coupled with the difficult circumstances of the parties’ separation, indicates a high level of suspicion between them.
The husband concedes that his occupation as a [omitted] required him to work long hours, up to seven days a week. As such, he accepts that he did not spend a great deal of time with the children. It is his position that, with the parties’ separation, he has decided to work shorter hours, so that he can be more involved in parenting the children. He has employed a [omitted] to share his workload.
The wife vacated the family home on 30 July 2012. She asserts that she left the home because of the husband’s violent behaviour towards her. She says that he forced his way into the children’s bedroom, breaking the door of the room concerned. The children were present and in her words were “very upset, intimidated by Mr Mori and frightened for my safety…”.
Thereafter the wife and the children went to live in crisis accommodation and now occupy rented accommodation. She has not disclosed this address to the husband because of her fear of him.
The husband’s position is that the wife is no longer actively involved in the bakery business and he hopes to place it on the market for sale. The wife’s position is that she is currently in a parlous financial position. She wishes Mr Mori to purchase her interest in the Property V property. The case first came before the court on 13 June 2012. On this occasion it was agreed that the parties would attend both a financial mediation conference and a child dispute resolution conference. At this early stage, the parties agreed that the [business] should be sold, however they were unable to agree on a selling price.
The matter returned to court on 10 August 2012, following the family dispute resolution conference. This conference occurred shortly after the wife had left the former family home. In these circumstances, it was hardly surprising that the parties were having difficulty in reaching consensus about ongoing arrangements for the care of their three children.
The matter returned to court on 10 August 2012. On this occasion, they agreed that the children should live predominantly with their mother but reside in their father’s household, during school terms, from after school on Friday until commencement of school the following Monday, in alternate weeks, as well as overnight on Wednesday, in the other week of each fortnight.
This arrangement has continued until the present time. Mr Mori’s position remains that the children’s best interests will be served if they live in a week about arrangement, with each of their parents. On the other hand, it is Ms Sade’s position that the children’s relationship, with their father, is not sufficiently strong to sustain such an arrangement.
The parties attended a financial mediation conference on 4 October 2012. They were unable to agree on issues relating to the division of their property. It is the wife’s position that the husband has not been frank in his disclosure of relevant financial documents to her. The Registrar who convened the conference is concerned at the modest extent of the property pool available for decision.
Against this background, the parties competing applications have been fixed for final hearing, for three days, in mid-May of 2013. As yet, no orders have been made in respect of a family assessment report. Given the controversy between the parties, regarding the shared care arrangement, such a report appears indispensible for the determination of final arrangements for the three children concerned.
Against this difficult and conflicted background, the issue of the children’s overseas travel has arisen. As this brief introduction demonstrates, there are many areas of controversy between the parties. In addition, their circumstances since separation have been extremely stressful.
In these circumstances, it is regrettable that the court must make a difficult decision, which will inevitably disappoint one of the parties concerned. For obvious reasons, it is impossible for a decision to be made, which will satisfy the concerns of both the husband and wife. I hope that, in resolving the dispute between the parties, I do not exacerbate the high level of tension between them.
The current applications
On 7 November 2012, Mr Mori filed his application in respect of arrangements for the care of the children over the forthcoming end of year school holiday period. He proposes that the children spend time with him from 4:00pm on Christmas Eve until 3:00pm on Christmas Day, as well as the previously indicated period of 3 to 24 January 2013 for the purposes of the Bali holiday. In addition he seeks orders that would see him spending half of each ensuing school holiday with the children.
Ms Sade responded to this application on 28 November 2012. She opposes the trip to Bali and seeks orders that would place the children’s names on the Airport Watch list maintained by the Australian Federal Police maintained at each port of departure from Australia.
In terms of arrangements for Christmas, in 2012, she proposes that the children spend from 4:00pm Christmas Eve until 2:00pm on Christmas Day with their father. In respect of the remainder of the holiday, she proposes a week about arrangement. As previously indicated, she is open to the children going to Queensland, with their father, for one of the weeks of the December/January school holiday, provided it does not coincide with the period of Christmas.
In addition, the wife seeks a partial property settlement, in the sum of $15,000.00. This issue was not argued before me in the interim hearing of 11 December 2012.
a) the husband’s position
The husband asserts that, approximately three years ago, he and the wife took the three children to Fiji for a holiday, which all enjoyed. As a consequence of this experience, he deposes as follows:
“The trip was such a success that I decided to take the family to Bali this summer. I booked and paid for the airfares and accommodation for myself, the wife and the 3 children at the Bali [accommodation omitted]. I organised this as a surprise for them. The accommodation was for 14 nights with date of departure set down for Sunday the 6th January 2013 and our return 2 weeks later on Sunday the 20th January 2013. Annexed hereto and marked with the letter “A” is a copy of the Harvey World Travel Itinerary for this trip. I planed the trip for January as January is traditionally the quietest month for business.”[1]
[1] See husband’s affidavit filed 6 November 2012 at paragraph 3
In support of this assertion, he provided an itinerary from Harvey World Travel dated 29 February 2012. This itinerary was issued on 29 February 2012, which was after the date of the parties’ final separation.
Ms Sade points out that apparently the name of a person travelling has been “whited out” from the itinerary in question.
Mr Mori has deposed enthusiastically about the facilities at the Bali [accommodation omitted], particularly so far as children are concerned. The hotel has water activities and is set up with children in mind. It is Mr Mori’s position that the children will be able to remain in contact with their mother, whilst they are away, via email and telephone.
In support of his proposal, Mr Mori deposes as follows:
“The holiday was paid in full some 9 months ago and the airfares and accommodation are non refundable. The children will enjoy this holiday and break away especially after the stressful year they have had with the applicant wife and I separating …”.[2]
[2] See husband’s affidavit filed 7 November 2012 at paragraph 13
b) The wife’s position
Ms Sade is highly suspicious regarding the circumstances surrounding the booking of the holiday in question by Mr Mori. It is her case that she was unaware of the proposed holiday until August 2011 and certainly Mr Mori did not inform her of the proposed trip or seek her acquiescence to it.
Ms Sade has made her own inquiries with Harvey World Travel. They inform her that the trip in question was booked by Mr Mori in the period following the parties’ separation and originally included a young woman, who was previously employed at the parties’ [business].
It is the tenor of the wife’s case that the husband has been deceitful and disingenuous about the trip as such, by necessary implication, she asserts that the husband and paid for the holiday “at his own peril” without seeking her prior approval.
The wife also disputes the husband’s assertion that the trip is non-refundable. She has inquired of the travel agent concerned and been advised that, as Mr Mori has taken out travel insurance, if the trip is cancelled as a consequence of court order, any moneys lost can be claimed on insurance.
I am unable to resolve this factual issue in the context of the current interim proceedings. However, during the course of the hearing of this matter, particularly whilst some inquiries were made as to whether the proposed trip could be shortened, I was advised that Mr Mori would be charged a fee of $1,300.00 in this eventuality.
As previously indicated, it is the wife’s position that she is currently living in straitened financial circumstances, whilst the husband controls all the major assets of the marriage, namely the former family home and the bakery business. In these circumstances, she is highly suspicious as to how the husband has been able to fund the trip in question. She believes that he is likely to have sold a parcel of Commonwealth Bank shares to fund the trip.
From her perspective, given what she understands of the financial position of the bakery business and her own circumstances, she believes that this was a highly irresponsible action on the husband’s part. As previously indicated, she asserts that Mr Mori’s level of financial discovery, to date, has been inadequate.
It is Ms Sade’s position that Mr Mori’s conduct, in respect of the proposed trip to Bali, has been marked by concealment and dissimulation. This conduct heightens her fears regarding a possibility that Mr Mori will not return, with the children, from Indonesia. Indonesia is not a signatory to the Hague Convention on International child abduction.
Given her current straitened financial circumstances – Ms Sade is currently in receipt of Centrelink benefits – she believes that it will be impossible for her to obtain the return of the children to Australia through any redress available to her from the Indonesian legal system.
Given the Australian Government warnings about Indonesia, Ms Sade believes that Mr Mori wishes to take the children to a country characterised by “high security and some health risks” she does not believe that Mr Mori has the parenting skills to manage these issues, given that the longest period of time he has had the children in his sole care is one of eight days, which occurred in the last school holiday period. She is also concerned at the possibility that Mr Mori will suffer a “flair up” of his Hashimoto’s syndrome.
It is further Ms Sade’s view that the three children concerned are currently adjusting to the difficult circumstances surrounding their parents’ separation. As such, she does not believe that the children will be able to emotionally sustain being away from her for approximately three weeks, particularly as there is no dispute between the parties that she was the children’s primary carer prior to separation.
In these circumstances, Ms Sade asserts that the children do not want to go to Bali. As such, she fears that if the children are compelled to go there, against their wishes, it may result in the children becoming estranged from their father. It is her case that the children should decide whether they want to go to Bali or not.
Overall, it is the wife’s position that the husband is psychologically insensitive to the views of the children and wants to take them to Bali to satisfy his own emotional needs. She is also concerned that Mr Mori is disregarding the warnings of the Australian Government and has no personal knowledge as to how he will function, as a parent with three young children, in an environment which is foreign to him.
She points to the fact that in November 2010, she took the children to the Gold Coast for a holiday. The children enjoyed this holiday and apparently are enthusiastically about returning there. In these circumstances, she asserts that the option of the husband taking the children to Queensland for a holiday in January of 2013 represents a reasonable solution to the current controversy, which is child focussed.
The nature of an interim hearing
Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
In addition, at the interim stage, decisions invariably have to be made against a background of urgency and controversy. So it is in this case. As a consequence, the evidence available to the court is often limited and hastily prepared. Again, so it is in this case.
In cases involving arrangements for children, the most significant piece of evidence, which is not usually to hand at the interim stage, is a detailed and independent assessment of the needs of the children concerned and the nature of their relationship with each of their parents. At the final hearing stage, such family reports play a crucial role in the determination of cases.
In this case, at present, there has been insufficient time to commission a family report. A family report is usually the best means of ascertaining the views of any child affected by the court’s decision. At this stage, it is difficult, if not impossible, for me to ascertain with certainty what are the views of [X], [Y] and [Z] in respect of the proposed trip to Bali.
However, notwithstanding the limited and provisional nature of the evidence available to the court, at this interim stage, a decision must be made between the competing claims of the parties concerned. In an ordered society, governed by the rule of law, there must be a mechanism for resolving disputes between citizens, including between those citizens who are parents and fall into disputation about arrangements for their children.
If there was not such a system, chaos would prevail and the strong would take advantage of the weak. In seeking an adjudication from the court, the parties concerned are bound by its decision.
In resolving any parenting dispute, the court is not primarily concerned with the rights of the actual disputants. It must regard the interests of the persons most fundamentally affected by its decision – the children concerned – as the paramount or most important consideration.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses.
Given the limited nature of the evidence available at the interim stage and the absence of cross examination, it is very often impossible for the court to resolve disputed issues of fact. Again, notwithstanding this obvious practical difficulty, the court must still remain focussed on the best interests of the children affected by its decision and look to matters which are incontrovertible and assess the nature of the evidence available in respect of issues which are in dispute.
The essential difference between an interim and final decision is that interim hearings do not determine long term arrangements for the care of the children concerned, whereas final hearings do. Accordingly, the outcome of an interim hearing is provisional in nature. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final hearing stage.
The legal principles applicable
Part VII is the part of the Family Law Act 1975 which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. Accordingly the issue of whether the children concerned in this case should or should not travel to Bali (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of any child concerned as the paramount or most important consideration [section 60CA].
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[3]
[3] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[4]
[4] See Line & Line (1997) FLC 92-729 at 83,846
It is Ms Sade’s case that there is a real risk of the children being the subject of some form of terrorist attack, whilst they are overseas in Indonesia. If this were not so, why she says, would the Australian Government warn its citizens not to travel to that country.
For his part, Mr Mori points to the fact that many thousands of Australians choose to travel to Bali each year for holidays. They assess the risk involved themselves and their loved ones and determine the risk to be an acceptable one to take. The dispute between the parties places me in the position of having to assess this risk.
All assessments of risk require a degree of prognostication about the future, which of course can never be known in advance. As Cronin J said in Gin & Hang:[5]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[5] Gin & Hang [2010] FamCA 617
In this particular case, Ms Sade identifies two species of risk. Firstly there is the risk of the father and children not returning to this country as promised. Secondly, there is the risk of the children coming to some physical harm in Bali, either through some breach of security or other medical misfortune.
The responsibility of the court is to attempt to quantify the degree of risk arising from both such scenarios in an objective and rationale manner and determine whether any risk entailed is one which it is not reasonable for the court to accept in all the circumstances prevailing. There may be “a” risk or “some” risk of either non-return or some horrendous calamity because such an eventuality can never be definitively ruled out. The question in cases of this nature is the degree or quantification of the risk concerned.
Conclusions
It is Mr Mori’s case that the proposed holiday to Bali will enhance his relationship with the three children concerned. They will have the opportunity to interact with one another, in pleasant and novel circumstances, which will add meaning to the parental relationship between them.
In general terms, I accept that this is true. Shared memories enhance parental relationships. I have no reason to think anything other than that the holiday in question will be an enjoyable one and, as such, [X], [Y] and [Z] and indeed Mr Mori, will have happy memories of it.
I have read the description of the hotel in Bali, which Mr Mori proposes for the holiday. I accept that it provides activities, which children of the ages of [X], [Y] and [Z] are likely to enjoy. Mr Mori will be also able to engage in these activities with the children.
The rationale of section 60CC(2)(a) is the children’s benefit, in an emotional and development sense, from feeling that their parents are involved in all aspects of their care which flow from them being exposed to their parents in a variety of settings. This, I take it, is the legislature’s intent by its use of the word “meaningful” in the section in question.
Mr Mori contends that his relationship with the children will become more meaningful if he is able to involve himself with them in fun activities on the proposed holiday. In this way, he hopes to have a more balanced and richer relationship with each of the children concerned. I accept that it is important for parents and children to spend holiday time together.
The mother’s case is that the father has behaved in a violent manner towards her, in the presence of the children. The last such incident of violence alleged occurring when she and the children left the matrimonial home. Since that time, relations between the parties have remained strained. The mother contends that the children remain traumatised because of the father’s behaviour.
I do not consider that the expatriate nature of the holiday itself is likely to accentuate the risk of the children being exposed to any further incident of either abuse, neglect or family violence. Accordingly, this factor is not, in my view, central to the issues of whether the proposed holiday should occur or not.
The mother’s position is that none of the children wishes to travel to Bali. The children’s views are not determinative of the issue and, in any event, I am required to examine any factors influencing those views and the maturity of the children said to be expressing such views.
In this case, none of the children concerned has any personal knowledge of what it is like to holiday in Bali. In addition, it is not beyond the bounds of possibility, that the children have been significantly influenced by their mother’s negative attitude towards the proposed holiday location.
In addition, I must bear in mind that the oldest child [X] is just over eleven. As such, the children cannot be regarded as mature children. Given these factors, I must be cautious about placing too much emphasis on their apparent views, particularly as the conduit for the expression of those views is Ms Sade herself and she is not likely to be a completely dispassionate observer of the issue.
Mr Mori concedes that, prior to the parties’ separation, he was heavily involved with his work, which involved onerous hours. In these circumstances, it seems more likely than not that the children’s most significant relationship is with their mother. In addition, I would expect that the three children, given the proximity of their ages, share a close relationship with one another.
My impression is that Ms Sade is very anxious about the trip to Bali. Given her pivotal role in her children’s lives to date, I must give some consideration to the psychological impact, on her, of the proposed trip, including its length. She is likely to be very worried about the trip, particularly given the proposed duration of the trip. It is possible that her anxieties will be picked up upon by the children.
The period following the parties’ separation was undoubtedly emotionally disruptive for both the husband and the wife. The children too are likely to be undergoing a process of emotional adjustment, which militates against ambitious changes being made to arrangements for their care.
However the children know Mr Mori well. In the past, he has taken them, albeit with the wife’s assistance, on another overseas holiday in Fiji. In these circumstances, it would not seem to me to be the case that the children’s relationship with their father is too rudimentary to sustain the trip envisaged. In this context, I also note that Ms Sade is open to the children spending a shorter holiday, with their father, provided it is in Australia.
Ms Sade’s position is that a three week holiday, given that the children are continuing to adjust to the circumstances of their parent’s separation, is just too long to be away from their primary carer, particularly in an overseas country. In my view, this is a strong consideration, particularly given the tense relationship between the parties, which axiomatically is marked by significant communication deficits. After all, it is clear that there was no consultation prior to
Mr Mori booking the holiday.
I am concerned that, too a large extent, Mr Mori has attempted to present both Ms Sade and the court with a fait accompli in respect of the holiday. In my view, three weeks is at the extreme upper end of what should be considered in the particular circumstances of these children, particularly given the currently compromised parenting relationship between their mother and father.
Under this consideration, I will turn to an assessment of the wife’s concern that Mr Mori might not return the children to Australia from Indonesia. I think that this possibility is so remote as to not be a significant consideration in this case for the following reasons.
Mr Mori has lived in this country for a considerable period of time. He has business interests and property interests in Adelaide, in contrast to Bali, where he has never visited and where he has no obvious means of support. As such, I can discern no rationale motive for him to remain in Indonesia. In reaching this conclusion I note that Indonesia is not a signatory to the Hague Convention.
I also have to make some assessment of the risk of the children coming to harm in the event they travel to Bali. For obvious reasons, as a member of the judicial arm of the Australian Government, I am reluctant to disregard the advice of the Department of Foreign Affairs and Trade regarding the travel of Australian citizens to Indonesia. However, the fact remains that thousands of Australian citizens choose to take their holidays in Bali each year. They are often accompanied by their children.
Ms Sade’s concerns are two fold. Firstly, she is anxious about the possibility of the children falling victim to some incident of terrorism. Secondly, she perceives the children to be at risk of falling ill in Bali, which she regards as a country less developed than Australia. Essentially, it is her case that it is too greater risk, to allow the husband to take the children to Bali.
In a recent case Fredericks & Carrigan[6] I said as follows in the context of an application by a parent to take two children to holiday in [Q], where the parent in question lived, in the face of vehement opposition by the other parent concerned:
“Individuals assess risks to themselves and their families as part and parcel of their lives. Individuals are prepared to accept some risks and reject others. When parents have separated, in difficult and acrimonious circumstances, as have the parties in the present case, it becomes difficult, if not impossible for them to discuss the degree of risk involved in any particular course of conduct for their children and agree on proportionate responses to the degree of risk involved.
In addition individual parents are likely to have different views about the nature of the risk involved in any proposed course of conduct for their children. Sadly, it is not unknown that the post separation politics in play between parents has a role in determining how any particular risk is perceived by the parties concerned.
So it seems to me to be in this particular case. For obvious reasons the respondent sees the degree of risk involved as a manageable and acceptable one. The applicant sees all manner of dangers in the respondent’s proposals, so far as [Q] is concerned.
In this day and age, no corner of the world is immune from the threat of terrorist attack. As is well known, there have been terrorist attacks in New York, London and Madrid, in the past decade or so – each a major Western centre. In addition, there have been such attacks in many locations within the developing world – Bali and Mumbai spring to mind in this regard.
As such, I think I would be naïve to think that there was no risk of the children coming to some form of harm if they travel internationally. The world can be a dangerous place. However the question for the court must be whether the risk is one which is appreciable. It must be more than one which is theoretically or remotely possible.”
[6] See Fredericks & Carrigan [2012] FMCAfam 663
In generic terms, I do not think it would represent an unacceptable risk for the children to travel to Bali for the time proposed. I appreciate however that I cannot know the future and their must be some element of possibility that the children will fall ill, in some way, or something untoward will occur to them. Essentially however, at this stage, I think these risks are remote in nature and not of such moment, in themselves, to render the proposed trip inherently unsafe or imprudent.
Whilst in Bali, it seems likely that the children will be able to maintain some form of electronic communication with their mother. Accordingly, the children would be able to reassure their mother that they are safe and she in turn will take some confidence from such assurances.
I am required to consider the capacity of Mr Mori to provide for the children’s emotional and intellectual needs. There may be some educational benefits, arising for the children of them spending some brief time in a foreign country, where customs, language and culture are different to those prevailing in Australia.
However, given the husband proposes spending the holiday in a hotel resort, these benefits are likely to be slight. However, I do not discount the fact that the children are likely to be excited at the prospect of being overseas travellers and, as such, are likely to retain positive memories of the experience.
The mother contends that Mr Mori is emotionally insensitive to the children’s needs and is likely to find their behaviour challenging. In this context, she is particularly concerned at the implications of Mr Mori’s Hashimoto’s disorder, given its previous consequences for his mood. In my view, these are significant considerations, particularly given the length of the proposed holiday.
At this interim stage, I am not in a position to resolve these issues definitively. Mr Mori deposes that he will have family assistance during the holiday in question. He will also have access to staff members at the resort in question, which operates a Kids Club. In these circumstances, it seems to me to be more likely than not that Mr Mori will be able to cope with the demands of the children, particularly given he will be able to access many diversions for them.
As previously indicated, Ms Sade is open to the prospect of the children having a shorter holiday in Queensland with their father. By necessary implication, she is of the view that Mr Mori is in a position to care for the children, in such a holiday setting, without extensive assistance, for periods of up to a week in duration. I am not altogether persuaded as to the logic of her assertion that his parenting capacity will be more compromised in a foreign as opposed to a domestic context.
Under the rubric of the attitude demonstrated by the parties to the responsibilities incumbent in being a parent, it falls to me to consider the circumstances in which the husband booked and paid for the holiday to Bali. I think I can conclude, from the evidence available to me, that the husband did not consult with the wife whatsoever, in respect of the proposed holiday. At best, he was insensitive to her feelings; at worst he acted deceptively and deceitfully. In my view, his conduct shows a compromised level of understanding of the responsibilities incumbent on a good parent.
As subsequent events have demonstrated, the proposed destination for the holiday is highly controversial between the parties. The husband is likely to have known, given her lack of familiarity with Indonesia, that the wife was likely to be uncomfortable with Bali as a location for the children’s holiday.
Two of the principles underpinning the part of the Family Law Act dealing with children indicate that parents jointly share duties and responsibilities for the care, welfare and development of their children and should agree about the future parenting of their children [section 60B(2)(c) & (d)]. Necessarily such principles envisage parents consulting with one another about matters significant to them.
The circumstances surrounding the purchase of the fare, in the immediate aftermath of the parties’ difficult separation, demonstrate an insensitivity to Ms Sade’s emotional needs. In my view, the issue of the holiday has been atrociously and provocatively handled by the husband.
Necessarily, given the lack of consultation and consideration in the purchase of the holiday, there are significant perils for the husband in having pursued the matter in the manner in which he has. He is likely to have known that he would not have easily got the wife’s acquiescence to the trip. Just because the holiday has been booked and paid for, Mr Mori cannot be assured of gaining the court’s approval for the trip on the basis that it is in effect a done deal. The issue is not to be determined on financial grounds alone.
In my view, the issue is a delicately balanced one. No one factor is clearly determinative of the issue, which remains highly controversial from each party’s perspective. I must endeavour to balance the competing section 60CC factors to reach the conclusion, which I think is best calculated to serve the interests of the children. Necessarily, this must be a process of synthesis.
I accept the children have a loving relationship with their father and so are likely to benefit from having some holiday time with him. It is not likely to matter much to these children whether the holiday happens in Bali, Fiji or some pleasant beach resort in Australia. The children will consolidate their already meaningful level of relationship with their father wherever the holiday takes place.
The holiday’s location is of more moment to the parties themselves. For understandable reasons, the wife resents being presented with the holiday location without any input from her. For his part, the husband resents what he perceives as the wife’s unwarranted intrusion into what he wants to do with the children. In this sense, the dispute is intensely political. The case concerns the parties’ post separation politics, which are fraught and difficult.
The holiday has been booked and paid for. It is likely to be difficult to reschedule a holiday somewhere else, at comparatively short notice. As I say, I accept that the children will benefit from having some holiday time with their father.
For reasons already provided, I do not think that Bali is likely to be an inherently unsuitable location for the holiday concerned. That is not to say I consider that it was selected, as a locale for the holiday, in a transparent and consultative manner. Clearly it was not.
Importantly, there was no discussion about the length of the holiday concerned. In my view, in the difficult circumstances prevailing, an overseas holiday of three weeks in duration is likely to be too long for the children, given their ages and particularly given what are obvious deficits in the parties’ relationship, so far as trust and communication are concerned.
Having considered these various factors, I have come to the conclusion that it would be in the best interests of the children to have a holiday, with their father, in Bali, but not for as long as he would want. I consider the maximum period likely to be beneficial for such a holiday to be one of ten days in duration.
I have been informed that the husband can truncate the holiday, albeit with some cost to him. As I have already observed, there were perils on him embarking on the holiday in question in the manner in which he did. Those perils have come home to roost.
In these circumstances, I will authorise the children travelling to Indonesia, with the father, for the purposes of the Bali holiday between Saturday 5 and Wednesday 16 January 2013. I will further order that the children spend time with the husband from 9.00 am on 21 January until 4.00 pm on 25 January 2013.
I will make orders for the wife to have telephone communication with the children, via either skype, telephone or other electronic means, at 5.30 pm on 7, 9, 12 & 14 January during the period they are in Bali with the time of the contact being determined by the time zone in which the children are located. The communication will take place at the husband’s instigation and at his expense.
Thereafter, with the commencement of the 2013 school year on 28 January 2013, the current arrangements, flowing from the consent order of 10 August 2012 can resume with the children having their first alternate weekend with the husband from after school on Friday 1 February 2013.
In terms of arrangements for Christmas time, I will order that the children spend time with the husband from 4.00 pm on Christmas Eve until 2.00 pm on Christmas Day. It is appropriate that the children spend half of each subsequent school holiday period with their father, prior to the matter coming on for trial in May next year.
I will therefore confirm the trial of the parties competing applications fixed for 15, 16 and 17 May 2013 and make the necessary trial directions. In this regard, I will order that a family report be prepared, pursuant to section 62G of the Family Law Act. I will direct that the report be released to the parties on or before 22 March 2013.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment. .
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 20 December 2012
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