Murray and Sandford

[2016] FCCA 840

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURRAY & SANDFORD [2016] FCCA 840

Catchwords:
FAMILY LAW – Parenting – whether limits to be placed on parents travelling internationally.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Gin & Hing [2010] FamCA 617
Line & Line (1997) FLC 92-729
MRR v GR [2010] HCA 4
Roberts & Pedrana and Ors [2012] FamCA 481

Applicant: MS MURRAY

Respondent: MR SANDFORD

File Number: WOC 695 of 2009

Judgment of: Judge Altobelli

Hearing dates: 25-26 February 2016

Date of Last Submission: 26 February 2016

Delivered at: Wollongong

Delivered on: 13 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Bailey Mullard Lawyers

The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitors for the Independent Children's Lawyer: Maguire & McInerney Lawyers

ORDERS

1. That order 19 of the orders made by consent on 21 February 2012 be discharged.

2. That the Father be permitted to travel with the children to any country which is a signatory to the Hague Convention on the following basis:

   (a)The Father shall give to the Mother at least two months’ notice (by way of email) of his intention to travel to the country of intended destination in accordance with this Order including details of the planned itinerary, flight details (including copy of return tickets) and accommodation details;

   (b)The Father shall be permitted to take one child only for a period of not more than one half of any Christmas School holiday period and such child shall not then travel again until the Father has taken the other child pursuant to this Order;

   (c)The Father shall ensure that the child is available to take the call (or Skype connection) from the Mother each alternate day that the child is in the country of intended destination;

   (d)The Father shall provide to the Mother his motor vehicle together with a Notice of Disposal (regarding any motor vehicle registered in his name) in registrable form on the day that he collects the child for the purpose of travel. That in the event the Father fails to return the child in accordance with these Orders, the Mother shall retain the right title and interest in that vehicle. That upon the return of the travelling child in accordance with these Orders, the Mother shall forthwith surrender the said Notice of Disposal and motor vehicle to the Father.

   (e)It is the responsibility of the Mother to keep the motor vehicle in a reasonable state of repair and in good order and condition;

   (f)The parties shall give to the Registrar of the Family Court of Australia written authority to release the passport of the travelling child to the Father at least four weeks prior to the date for travel and such authority shall not be unreasonably withheld;

   (g)That both parents be restrained from discussing any proposed travel arrangements until such time as the parties have complied with Order 2.6 herein;

   (h)In the event that the Father takes the child in the first half of the Christmas School holidays then the Father shall also spend time with the non-travelling child for the last four days of the Christmas School holidays as agreed between the parents;

   (i)In the event that the Father takes the child in the second half of the Christmas School holidays then the Father shall also spend time with the non-travelling child for the last first days of the Christmas School holidays as agreed between the parents.

3. That the Mother be permitted to travel with the children to any country which is a signatory to the Hague Convention on the following basis:

   (a)The Mother shall give the Father at least two months’ notice (by way of email) of his intention to travel to the country of intended destination in accordance with this Order including details of the planned itinerary, flight details (including copy of return tickets) and accommodation details;

   (b)The Mother shall be permitted to take both children for the period of time as agreed in writing between the parents but otherwise during school holiday periods in accordance with these Orders;

   (c)The Mother shall ensure that the children are available to take the call (or Skype connection) from the Father each alternate day that the children are overseas;

   (d)The parties shall give to the Registrar of the Family Court of Australia written authority to release the passport of the children to the Mother at least four weeks prior to the date for travel and such authority shall not be unreasonably withheld;

   (e)That both parents be restrained from discussing any proposed travel arrangements until such time as the parties have complied with Order 3.4 herein.

4. That the parties shall forthwith sign all documents and do all things necessary to enable the Mother to renew each of the children’s (nationality omitted) Passports as they fall due. In this regard the father shall sign all documents required to give effect to this order within fourteen (14) days of those documents being given to him by the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 695 of 2009

MS MURRAY

Applicant

And

MR SANDFORD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about 2 children, X, born (omitted) 2003 and Y, born (omitted) 2006.  The boys' parents were unable to reach agreement about aspects of their parenting.  These reasons for judgment explain the Orders that the Court has made in determination of that dispute. 

Background

1. The Applicant in this case is the boys' mother.  She was born (omitted) 1975 and is 40 years old.  The Respondent is their father.  He was born (omitted) 1976 and he is 39 years old.  The parents married in (omitted) 2001 and separated in 2008.  Regrettably, the litigation history between the parents is a long one, with the predecessor to this litigation commencing the year after separation in 2009.

2. X will be nearly 13 by the time these reasons for judgment are published.  His brother, Y, is 9 years old.

3. For all practical purposes, the current Orders in place relating to the children are those that were made by consent, by Walker FM on 21 February 2012.  Those Orders provide for equal shared parental responsibility, and week-about equal time.  When the current round of proceedings was commenced and indeed right up until the hearing itself, the issues between the parents included the appropriateness of the equal shared parental responsibility order, whether the spends time with Order should be changed so that the Mother spent more time with the children, and the Father less, and issues about passports and travel.

4. However, during the course of the proceedings in February this year, the parents very wisely chose to settle most of the issues that were originally in dispute.  The Consent Orders made on 26 February 2016 dealt with the issue of the children obtaining Australian citizenship and Australian passports and also provided for the children to retain their (nationality omitted) citizenship.  A notation to the Consent Orders clarifies that the Orders made by consent on that day represented additional final Parenting Orders and thus supplemented the Orders made on 21 February 2012.

5. Thus, the ambit of the dispute had narrowed considerably and the real focus of the litigation turned to Orders 18 and 19 of the said Consent Orders that dealt with travel for the children.

6. Both parents are of (nationality omitted) birth and background.  The Mother immigrated to Australia in 2007, the Father in 2008.  The Mother became an Australian citizen, the Father has permanent residence.  Both the Mother and the Father have re-partnered.

7. It is common ground that the children have a good relationship with both parents.  It is apparent from the evidence filed by both parties that the parents struggle to effectively communicate with each other and sometimes, even relatively small matters create a conflict between them.

The Issues

1. As foreshadowed above, therefore, the issues in respect of which determination is required are actually quite limited.  The Orders sought by the Mother were contained in a Minute of Order provided to Chambers on 26 February 20116.  This Minute of Order is reproduced in the first schedule.  What is significant is that the Mother was not proposing a variation to existing Order 18 which regulates travel with the children to (country omitted).  The effect of that Order is that either parent could travel to (country omitted), but each was only permitted to take one child.  By way of background, this was in effect, security for the return of the other child in circumstances where (country omitted) was not a Hague Convention country. 

2. However, the Mother did propose that existing order 19 be discharged.  Existing Order 19 deals with travel to a Hague Convention country.  The Mother proposed 2 Orders – one which regulates the Father's travel to any country which is a signatory to the Hague Convention and one which regulates her travel with the children to any such country.  In the Father's case, the Mother's Order provided that he be permitted to take only one child but, in the Mother's case, she be permitted to take both children. 

3. As will become apparent from the discussion of the evidence below, the Orders reflected the Mother's concern that if the Father travelled with both children anywhere, whether Hague Convention or non-Hague Convention country, there was the risk that he would not return with them, ostensibly on the basis that even if he went to a Hague Convention country, he could then on‑travel to a non-Hague convention country.  In effect, the Mother's case was that there was an unacceptable risk to the children of the Father not returning them back to Australia, whether they travelled to a Hague Convention country, or otherwise.

4. By contrast, the Father's proposal was simply that both parents be allowed to take the children overseas during school holidays, without restriction as to destination.

5. Both parents appear to have sought Orders to enable the children to obtain (nationality omitted) passports.  This is unsurprising, given Order 3 made by consent on 26 February 2016 to the extent that the parties would ensure that the children retained their (nationality omitted) citizenship.

The Evidence

1. The evidence filed in the Mother's case consists of her affidavit sworn and filed 30 October 2015 and that of her husband, Mr C, sworn and filed 2 November 2015. 

2. The evidence in the Father's case consisted of his affidavit of 29 October 2015 and that of his wife, Ms S, 28 October 2015.

3. A Family Report had been prepared by Family Consultant O'Donohue, dated 29 January 2015.  At paragraph 51 of that report, the Family consultant noted the following:

   In relation to overseas travel and citizenship, these are not matters a Family Report usually addresses.  While Mr Sandford’s request appears reasonable, particularly his desire to take the boys and expose them to their extended family and culture, such action does come with the apparent  risk that they may not be returned and this is a  concern that the Court would need to consider. In relation to citizenship, X has identified a wish to become an Australian citizen and this appears to be important to his sense of identity. This issue did not appear significant for Y at this point in time.

4. Having had regard to this paragraph, there will be no further reference to the Family Report in these reasons for judgment.

Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act 1975. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (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.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (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).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. A very useful decision is that of Cronin J in the Family Court of Australia in Roberts & Pedrana and Ors [2012] FamCA 481 (19 June 2012). His Honour identified that issues about international travel are matters that are normally dealt with by a parent as issues relating to parental responsibility. When they cannot decide, however, the Court must make a decision. At paragraph 17 of his reasons, his Honour noted:

   It is important in an international travel case that the Court consider the role of both parents in the lives of their children.  That focuses the attention on whether or not there is a risk as indicated by the husband that the child would be removed from Australia permanently and therefore from his father’s life.

4. It is the Mother's case, in the present matter, that there is a risk that the Father would remove the children from Australia permanently and thus from her life. Cronin J identified that a decision about international travel is still governed by s.60CA of the Act, that is, the Court must have regard to the best interests of the child as the paramount consideration. His Honour noted that issues such as compliance by one party with Orders was a relevant matter to consider in deciding whether to permit international travel. At paragraph 22 Cronin J stated:

   In Line & Line (1997) FLC 92-729, the factors relevant for consideration in an international travel case were said to be:

   (a)     the existence or otherwise of continuing ties between the departing parent and Australia;

   (b)     the existence and strength of possible motives not to return;

   (c) the existence and strength of possible motives to remain in the other nominated country;  and

   (d)     whether the country of travel is a signatory to the Hague Convention.

5. At paragraph 28 his Honour referred to his earlier comments in Gin & Hing [2010] FamCA 617:

   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.

Discussion of Evidence

1. Both parents gave evidence and were cross‑examined.  An Independent Children's Lawyer had been appointed for the children and thus Counsel for the Independent Children's Lawyer, Mr Jackson, was able to provide a thorough cross‑examination of both parents, but particularly of the Mother in circumstances where the Father was representing himself.

2. Both parents impressed the Court about their commitment to the children, and to the family generally.  Family is clearly important to both of them.  The conception of family to both parents includes the extended family, most of whom live in (country omitted) and not in Australia.  It seems clear that these children enjoy good relationships all around.  That, of course, is not the issue in this case but rather whether on an objective review of the evidence there is an unacceptable risk that if the Father were able to take both of them overseas at the same time, he would not return with them to Australia and thus deprive the Mother of their close relationship with her.

3. It is important to record that both parents were cross‑examined about all of the issues then before the Court, that is, the issues which had not narrowed as at the time of their cross‑examination.  Thus, it was possible to form a broader impression about credit issues.  The Court thus found the Mother to be vague, at times, in her evidence and even sometimes inconsistent in her concerns about the Father's travels with the children.

4. The Court is sceptical about the evidence that both parents gave, in relation to their perception of the children’s views, in relation to the issues before the Court.  The Court places no weight on such evidence, given the inherent unreliability of the partisan account of what children are purported to say.  In any event, it is apparent that these children are very much aware of the conflict between the parents and thus the Court does not discount the possibility that they may be saying what they believe that their parent wants to hear. 

5. The Father’s evidence was not characterised by the vagueness and inconsistency, at times, of the mother’s evidence.  Indeed, he was probably the more impressive witness on the day.

6. As the Father raises no concerns about the Mother’s travel with the children overseas, the focus really does turn to the Mother’s concerns about the Father.  In relation to the Father, the evidence before the Court indicates that he is a currently unemployed (occupation omitted).  Whilst he has been granted permanence in Australia, he is not an Australian citizen.  His wife is (nationality omitted).  She too is currently unemployed, though seeking work as an (occupation omitted).  The Father clearly has strong ties to (country omitted), including strong family ties.  He travelled there twice in 2012 and once each in 2014 and 2015.  In each case, however, he has not been able to take either of his boys because, he believes, he could not choose which of the boys to take between them and he didn’t feel it was appropriate to separate the boys.

7. He agreed that, however, when the parents separated in 2008, he did return to (country omitted) with both boys, initially leaving the Mother behind in Melbourne.  It was put to him that indeed, he only returned to Australia with the boys after the Mother had represented to him that she would reconcile.  He firmly denied this, insisting that the children were returned to Australia with him after the Mother had indicated she would not reconcile with him.

8. In 2012, the issue of international travel was very much a live one as between the parents notwithstanding the February 2012 Consent Orders.  He was cross-examined in relation to an email that he sent to the Mother on 4 April 2012.  What this email plainly indicates, according to its terms, is that notwithstanding the orders of 21 February 2012, which specifically dealt with international travel, the Father still regarded this issue as an “unresolved” issue. 

9. The Father justified his view by reference to the fact that he did not have the benefit of advice at the time the Consent Orders made 21 February 2012 had been entered into.  When pressed, however, he agreed that he had legal representation during those proceedings but not necessarily at the time of the Consent Orders. 

10. The Father was then taken to an email that he sent to the Mother on 16 October 2013.  The context to this correspondence was the Mother seeking the Father’s consent to the release of children’s passports so that she could travel to (country omitted) between 24 December 2013 and 4 January 2014.  This was required pursuant to the orders of 21 February 2012.  In the sent email, the Father says at one point:

    This is to ensure that the children will not travel to any other countries from (country omitted), including non-Hague convention countries such as (country omitted).  Otherwise, the non-Hague convention countries travel conditions will apply, as there is no proof at the moment that you will not travel to (country omitted) or other countries from (country omitted).  We will also need to amend the court order to reflect the restrictions and also safe and fair travelling policy for the children. 

11. In a email dated 18 October 2013 from the Father to the Mother, he again refers to the issue of the children travelling from a Hague convention country to a non-Hague convention country and thus “never return”.  Indeed, in that email, it is apparent that what the Father was seeking to implement was an agreement about international travel that made “no difference between travel policies between Hague and non-Hague convention countries.”

12. The Court observes that the potential significance of this evidence is that at no relevant point did the Father express concern about the  Mother not returning the children to Australia, whether they travelled to a Hague or non-Hague convention country.  Also, the context of this correspondence makes it obvious that despite the Father’s contention to the contrary, he raised the issue of travel from Hague to non-Hague convention country, not the Mother.

13. The Father agreed that he does not own property in Australia.  He agreed his family has property in (country omitted) but not he personally.  He accepted that the Mother had a concern about him travelling to (country omitted) with the boys but not returning.  He acknowledged the lack of trust issues between them.  He acknowledged that there was a basis for her lack of trust in him.  He agreed that he had accessed her private emails.  He agreed that the Mother had never threatened to remove the children from Australia or from his care.

14. The Father explained that he was not yet an Australian citizen because, in order to do so, he would have to give up his (nationality omitted) citizenship. He explained that he “loves both countries”.  He has family there.  He wants the boys to maintain a connection there including (nationality omitted) citizenship. 

15. When cross-examined by Counsel for the Independent Children’s Lawyer about the emails he sent to the Mother (referred to above) he explained that he could understand how the Mother might have been anxious on receiving those emails but he explained that if he were planning to do that, that is, travel from a Hague convention country to a non-Hague convention country, he was hardly likely to openly refer to that in a correspondence.  He, in fact, doubts the genuineness of the Mother’s fears about the children’s non-return and suggested she had another unrelated motive. 

16. He agreed, however, that the boys do not have much of a memory of (country omitted), even though he has sought to foster a close affiliation with (nationality omitted) culture with them.  They speak (nationality omitted) at home.  They eat (nationality omitted) food. 

Closing submissions

1. Both Counsel for the Mother, and the Independent Children’s Lawyer, acknowledged that the case was finely balanced but both agree that the Father’s emails to the Mother do give rise to concerns and that the Mother’s anxiety about the issues before the court was both genuine and reasonable, given that (country omitted) is not a Hague convention country.  The Father’s connections to (country omitted) seemed, on the evidence, to be stronger than his connections to Australia, all of which fuels the Mother’s anxiety and, ultimately, makes it a significant factor in terms of her parenting the children. 

2. Both Counsel accepted the obvious benefits to children of travel, but both recognised that these children are already exposed to their (nationality omitted) culture in their Father’s home.  The Mother’s Counsel emphasised the lack of trust that existed between the parents and the Father’s contribution to this. 

3. The Father submitted that the issue of the children’s travel to (country omitted) was one that he considered a basic human right for them and integral to the importance of maintaining the family connection.  He did not believe it was in the best interests to be able to travel with one of the children only and emphasised the importance of the children knowing, as well as physically feeling a part of the paternal family.

Determination

1. This case is finely balanced, indeed, more finely balanced than Counsel may have appreciated.  The decision could go either way.  The Father’s emails to the Mother in 2012 and 2013 are not determinative in their own right but, in a finely balanced case, they cannot be ignored.  Whilst the Father’s sense of family and the importance of his family’s links to their (nationality omitted) heritage and culture, it is somewhat odd that despite 4 visits to (country omitted) since 2012, he has not taken either of the boys at any time. 

2. This is somewhat inconsistent with his stated position about the importance of the boys knowing the paternal family.  If the Father had, for example, implemented the rights that he had under the existing Order, both boys could have travelled back to (country omitted) with him twice since the 2012 orders.  This raises a question in the Court’s mind about the genuineness of the Father’s statements and indeed of his motives.  If it really was about the boys and their cultural links and if this really is as important as the Father asserts, the Court cannot understand why he has not travelled with even one of the boys, using the opportunities he has had.    

3. The objective facts are that he does have stronger ties to (country omitted) than Australia.  The strength of his ties to (country omitted) and the very poor relationship he has with the boys’ mother, creates a possible motive for him to remain in (country omitted) with the boys.  Indeed, viewed objectively and even on a finely balanced case such as the present one, his motives to remain in (country omitted) are greater than his motives to remain in Australia.  There is, therefore, a risk to the boys of not being returned, a risk that is greatly mitigated if only one can travel with their father at any one time.  The fact is that (country omitted) is not a signatory to the Hague Convention.

4. The effect of the Orders that the Mother seeks would be to maintain existing Order 18, thus meaning the father could only travel to (country omitted) with one child.  The effect of order 2 sought by the Mother in her minute would be, in effect, to extend that restriction to travel by the Father even to a Hague Convention country, on the basis that the risk acknowledged by both parents in the evidence is on-travel from a Hague country to a non-Hague country.  The Court accepts this is a risk.  Order 3 proposed by them otherwise deals with her travel to any Hague Convention country.

5. The Court believes that the Orders sought by the Mother are appropriate and in the best interests of the children.  Thus, order 19 made by consent on 21 February 2012 is discharged and the 2 further Orders proposed by the Mother in her minute, Orders 2 and 3, be made to supplement the orders of 21 February 2012. 

6. One minor issue remains for determination.  Whilst both parents seem to agree that the children’s (nationality omitted) passports should be renewed, they cannot agree as to the mechanism for achieving this.  Order 4 proposed by the Mother is appropriate under the circumstances and is the Order that the Court makes.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  13 May 2016

Schedule 1 – Minute of Order Sought by the Mother

1. That order 19 of the orders made by consent on 21 February 2012 be discharged.

2. That the Father be permitted to travel with the children to any country which is a signatory to the Hague Convention of intended destination on the following basis:

   2.1The Father shall give to the Mother at least two months’ notice (by way of email) of his intention to travel to the country of intended destination in accordance with this Order including details of the planned itinerary, flight details (including copy of return tickets) and accommodation details;

   2.2The Father shall be permitted to take one child only for a period of not more than one half of any Christmas School holiday period and such child shall not then travel again until the Father has taken the other child pursuant to this Order;

   2.3The Father shall ensure that the child is available to take the call (or Skype connection) from the Mother each alternate day that the child is in the country of intended destination;

   2.4The Father shall provide to the Mother his motor vehicle together with a Notice of Disposal (regarding any motor vehicle registered in his name) in registrable form on the day that he collects the child for the purpose of travel. That in the event the Father fails to return the child in accordance with these Orders, the Mother shall retain the right title and interest in that vehicle. That upon the return of the travelling child in accordance with these Orders, the Mother shall forthwith surrender the said Notice of Disposal and motor vehicle to the Father.

   2.5It is the responsibility of the Mother to keep the motor vehicle in a reasonable state of repair and in good order and condition;

   2.6The parties shall give to the Registrar of the Family Court of Australia written authority to release the passport of the travelling child to the Father at least four weeks prior to the date for travel and such authority shall not be unreasonably withheld;

   2.7That both parents be restrained from discussing any proposed travel arrangements until such time as the parties have complied with Order 2.6 herein;

   2.8In the event that the Father takes the child in the first half of the Christmas School holidays then the Father shall also spend time with the non-travelling child for the last four days of the Christmas School holidays as agreed between the parents;

   2.9In the event that the Father takes the child in the second half of the Christmas School holidays then the Father shall also spend time with the non-travelling child for the last first days of the Christmas School holidays as agreed between the parents.

1. That the Mother be permitted to travel with the children to any country which is a signatory to the Hague Convention on the following basis:

   3.1The Mother shall give the Father at least two months’ notice (by way of email) of his intention to travel to the country of intended destination in accordance with this Order including details of the planned itinerary, flight details (including copy of return tickets) and accommodation details;

   3.2The Mother shall be permitted to take both children for the period of time as agreed in writing between the parents but otherwise during school holiday periods in accordance with these Orders;

   3.3The Mother shall ensure that the children are available to take the call (or Skype connection) from the Father each alternate day that the children are overseas

   3.4The parties shall give to the Registrar of the Family Court of Australia written authority to release the passport of the children to the Mother at least four weeks prior to the date for travel and such authority shall not be unreasonably withheld;

   3.5That both parents be restrained from discussing any proposed travel arrangements until such time as the parties have complied with Order 3.4 herein

2. That the parties shall forthwith sign all documents and do all things necessary to enable the Mother to renew each of the children’s (nationality omitted) Passports as they fall due. In this regard the father shall sign all documents required to give effect to this order within fourteen (14) days of those documents being given to him by the mother.

NOTATION

A.The Court notes that these orders are additional to the orders made by consent on 21 February 2012 and 26 February 2016.

B.The Court notes that X's (nationality omitted) Passport is due to expire in April 2016 and Y's (nationality omitted) Passport is to expire in October 2016.