NASHI & SHONA

[2014] FamCA 706

FAMILY COURT OF AUSTRALIA

NASHI & SHONA [2014] FamCA 706

FAMILY LAW – PARENTING – Application by mother seeking permission for international travel – child aged 7 – purpose of travel to visit extended maternal family in Country D – father has no contact with the child for 12 months as a consequence of pending criminal proceedings – significance of Country D becoming a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 – mother required to pay security bond – order made facilitating overseas travel

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Re R [2014] EWHC 2802 (FAM)
Marvel [2010] FamCAFC 101
Goode [2006] FamCA 1346

APPLICANT: Mr Nashi

RESPONDENT: Ms Shona

INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

FILE NUMBER: PAC 3419 of 2013

DATE DELIVERED: 18 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mahony Family Lawyers

Marsdens Law Group

Orders

1. The Father’s application for an adjournment is dismissed.

2. The child B born … 2007 is permitted to travel internationally.

3. The Mother may apply for a passport for the said child B born … 2007 without first obtaining the consent of the Father.

4. The Mother do provide to the Father a full itinerary relating to the overseas travel proposed by her including details of air travel, destination and accommodation and contact details for the Mother and the child as soon as practicable before departure and in any event not less than 14 days before departure.

5. The child’s passport remain in the custody and possession of the Mother.

6. Not less than 14 days prior to her departure from Australia for the purposes of these orders the Mother deposit with her solicitor the cash sum of $5,000 to be held on trust for both parties and to be disbursed as follows:

   (a)       To be repaid to the Mother in full on her return to Australia; or

   (b)To be paid on account of any legal and other appropriate fees incurred by the Father in the event that the Mother fails to return the child to Australia and for the purposes of this order the Father shall provide all necessary invoices and accounts to the Mother’s solicitor for payment.

7. The proceedings be listed before the Docket Registrar on Monday 10 November 2014 at 11:00am for further directions.

8. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

9. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

IT IS NOTED THAT:

A.The Father on 12 May 2014 filed a Response seeking dismissal of the Mother’s parenting application but no other orders. In due course it will be necessary for the Father to file an amended response setting out with particularity parenting orders sought by him.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nashi & Shona has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3419 of 2013

Mr Nashi

Applicant

And

Ms Shona

Respondent

REASONS FOR JUDGMENT

1. The current application before the Court was filed on 4 March 2014, and involves a discrete application by the mother seeking permission to obtain a passport for the child and that she be able to travel with the child to Country D to visit family for a period not exceeding 14 days during the 2014 calendar year.

2. The mother previously filed an application for final orders on 13 August 2013, and in that application she sought final orders that in summary provided that she had sole parental responsibility for the child, that the child live with her and the child spend no time and does not communicate with the father.  She also sought, pursuant to s 68B of the Act injunctive orders for her protection and the protection of the child from the father.  She sought similar orders on an interim basis.

3. The father filed a response to the mother’s application on 12 May 2014, and in that response the father sought orders that the orders sought by the mother “be dismissed” and that the mother pay the father’s costs. 

4. Subsequent to the proceedings commencing, the matter was allocated to the Magellan list, and a Magellan report was provided to the Court, dated 30 October 2013.  That report is exhibit A.  The report reveals a number of complaints made to the Department of Family and Community Services being five risk of significant harm reports in relation to the child.  All of those reports arise as a consequence of the behaviour, conduct and attitude of the respondent father. 

5. Otherwise, the mother filed a Notice of Abuse on 13 August 2013. That notice of abuse also setting out a litany of allegations in relation to the father’s behaviour in terms of physical assaults, abuse and coercive conduct perpetrated by him on the mother and the child. 

6. The mother’s present application is supported by an affidavit filed on 4 March 2014.

7. The mother is presently aged 39 and was born in Country D.  She is now a permanent resident of Australia.  The father was born in 1957 and is presently 57 years of age. 

8. The child, the subject of the application, B born in 2007, is the only child of the parties’ relationship.  The mother has no other children. 

9. She asserts that the father has four other children, to her knowledge all of them being well over 18 years of age. 

10. The proceedings were on 16 September 2013 allocated to the Magellan protocol.

11. Subsequently, on 30 October 2013, the Magellan report was released to the parties, and the matter was listed for further directions on 31 October 2013 before the Magellan Registrar. 

12. Proceedings were adjourned as a consequence of certain proceedings, involving assault allegations against the father awaiting determination in the Suburb C Local Court in Sydney, that were due to be heard on or about 7 February 2014.  The proceedings were adjourned to 18 February 2014 to facilitate a resolution of those proceedings.  Subsequently the proceedings were further adjourned as the proceedings did not finalise on 7 February 2014 and came back before the Court on 12 May 2014 and were then adjourned to 22 May 2014. 

13. On 22 May it was noted on the court file that the father’s criminal proceedings had been finalised, but there was some suggestion the father was considering an appeal in relation to the findings of the Court. 

14. The father has appeared in person today and confirms that, indeed, he has appealed against the findings and orders of the Local Court, and that appeal awaits determination in the District Court of New South Wales.

15. On 22 May, the father was ordered to file and serve his affidavit by 1 July 2014, and proceedings were adjourned to this day for prospective transfer to the judicial duty list.  The matter came before the Registrar this morning, and the matter was duly transferred. 

16. The mother in the context of the history of the proceedings says that she seeks to travel to Country D for a period of not more than 14 days in the current year.  She says that the father has had no contact with the child since the parties’ separation, which is now well over 12 months. 

17. The mother continues to be the child’s primary caregiver, and she seeks to be able to obtain a passport for the child to travel to Country D.  She says it’s a short period for a holiday of two weeks. She specifically seeks to visit Country D to see her aged maternal grandmother, who is suffering from cancer.  The child also would have time over there to see other members of the extended maternal family.  The maternal grandmother has only seen the child once when she travelled to Australia shortly after the child was born.  The child has not seen his maternal grandfather at all. 

18. Currently the mother says the child speaks to his grandparents and other extended maternal family, such as cousins, uncles and aunts and grandparents via Face Time video telephone conversation and like forms of electronic communication.  She says the child seems to enjoy those conversations and asks the mother on occasions when he may meet these people. 

19. The mother has previously requested permission to be able to take the child to Country D to see her family, and the father, as is his position in the present application, refused to provide his consent.  The mother says she is prepared to provide details of her trip, once booked, and so the father would be aware of her travelling circumstances. 

20. The father filed a response on 12 May 2014 to the mother’s interim application, seeking that the application be dismissed or, in the alternative, the application in the case be adjourned until after the conclusion of criminal proceedings against the respondent father. 

21. The actual date of the conclusion of those criminal proceedings is indeterminate, as the father’s appeal still awaits determination in the District Court of New South Wales.  The father today makes an application for the proceedings to be adjourned on the basis that he was unwilling to file an affidavit in the proceedings by reason of the pending criminal proceedings, and the allegations made by the mother in those proceedings. 

22. He further says that he is unrepresented, he is unwell, needs an interpreter, and, accordingly, seeks to have the matter adjourned. 

23. The mother’s application for overseas travel has been pending since 4 March 2014, and it’s now late August 2014.  The mother seeks to travel by the end of the present calendar year. 

24. In all of the circumstances, and having regard to the discrete issue for determination, in particular, the fact that the father at the moment is spending no time with the child as a consequence of various allegations against him, it is appropriate for the matter to be heard, and in those circumstances the father’s application for adjournment is dismissed.

25. Importantly, in the context of the mother’s application, Country D has now become a signatory to the Hague Convention, more fully known as the Hague Convention on the Civil Aspects of International Child Abduction, 1980.  Country D adopted that Convention on 1 April 2014.  Australia is also a signatory to that convention, which facilitates the operation of the Convention as between Australia and Country D.  The purpose of the Hague Convention is to provide a swift mechanism to secure a safe return of a child who is wrongfully removed or retained from their home country so that any dispute about where the child should live can be decided by the Court in his home country. 

26. In particular of note is that the High Court of Justice, Family Law Division in the United Kingdom has recently heard and determined a Hague Convention case as between the United Kingdom and Country D.  That decision is in Re R [2014] EWHC 2802 (FAM).

27. The proceedings presently before the Court are interim parenting proceedings. The nature of interim proceedings was considered by the Full Court in Marvel [2010] FamCAFC 101.

28. The law to be applied in relation to parenting proceedings is well-settled: Goode [2006] FamCA 1346.

29. S 60B outlines the objects and principles underlying Part VIII of the Act. 

30. S 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. 

31. S 60CC then outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child. 

32. S 61DA of the Act provides that when making a parenting order, including in the context of the present application, the Court must apply a presumption for the child’s parents to have equal shared parental responsibility. 

33. That assumption would not apply if there were reasonable ground to suspect the engagement of or in abuse or family violence or if the Court is satisfied the order is not in the best interests of the child or unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied. 

34. Whilst the application of the presumption is contraindicated in the present context of this matter, the Court will apply the presumption as to joint equal shared parental responsibility for one reason: that is to provide a basis for any Hague Convention application in the event that the child is not returned to Australia as the exercise of joint parental responsibility will equate to rights of custody for the purposes of that Convention.  An order will be made pending further order. 

35. If the presumption applies, the Court is usually required to consider the terms of s 65DAA in relation to equal time or substantial and significant time. Such an exercise is not appropriate in the context of this application where the father is spending no time with the child as a consequence of pending criminal proceedings, this matter being in the Magellan list and where the application before the Court is a discrete application as to overseas travel. 

36. It is clear that such orders are not in the child’s best interests by reason of the matters referred to above nor are they practicable in the context of the father’s present pending criminal proceedings that prevent his contact with the mother and child.

37. Otherwise, the Court will have regard to the best interest considerations set out in s 60CC of the Act. 

38. Primary consideration such as meaningful relationship and protective concerns set out in s 60CC(2) are of little utility in the present discrete application.

39. The primary factor in terms of this determination is the nature of the child’s relationship with each of the child’s parents and other persons, including grandparents.  In this case, the child has a tenuous relationship with extended maternal family, and the mother proposes to try and, as it were, shore up those relationships by being able to visit her family in Country D.  In the context of the child’s relationships with extended maternal family, this can be a relevant consideration under 60CC(b)(ii) by reason of the relevance of any other fact or circumstance set out later in the section. 

40. The child is young.  He has developing attachments; in particular, there is no doubt the child is primarily attached to the mother and there is some nexus between the child and the extended maternal family.

41. In all of the circumstances, particularly where the mother has offered to provide cash security so as to facilitate payment to the father in the event that she fails to return in order that he might make application under the Hague Convention for appropriate orders, the court is satisfied, Country D now being a convention country, that it is appropriate to facilitate her and the child’s travel for the purposes stated by her.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 August 2014.

Associate: 

Date:  18 August 2014