Norris & Ishikawa (No 2)
[2023] FedCFamC1F 708
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Norris & Ishikawa (No 2) [2023] FedCFamC1F 708
File number(s): SYC 4494 of 2021 Judgment of: SCHONELL J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Overseas travel – Where the father has sole parental responsibility and the children spend no time with the mother – Where the father sought to travel with the children to Country P – Where the mother contended that there is a risk the children will not return – Where Country P is a Hague Convention country – Where there may be issues with enforceability of orders of this Court in Country P – Where the Court is required to act cautiously – Father’s application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 14
Cases cited: Adamson & Adamson [2018] FamCA 523
DeLuca & Farnham [2019] FamCAFC 100
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 18 August 2023 Place: Heard in Sydney, delivered in Brisbane Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Kydon Segal Legal Lawyers Counsel for the Respondent: Mr Scarlett OAM RFD Solicitor for the Respondent: Phillip A Wilkins & Associates Solicitor for the Independent Children’s Lawyer: Chidiac Legal (Did not participate) ORDERS
SYC 4494 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ISHIKAWA
Applicant
AND: MS NORRIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1.The applicant father’s Application in a Proceeding filed 2 May 2023 is dismissed.
2.The respondent mother’s Response to Application in a Proceeding filed 4 June 2023 is dismissed.
3.Within 14 days from the date of these orders, the mother do all acts and things to ensure that the children are added to the father’s private health insurance policy including but not limited to removing the children from her policy.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Norris & Ishikawa has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding filed 2 May 2023, the applicant father (“the father”), who is the respondent in the substantive proceedings, seeks parenting orders in relation to the parties’ two children, X aged 13 years and Y aged 10 years. Notwithstanding what was sought in the Application, by the time of the hearing, he sought orders to the following effect:
(1)an application to take the children overseas to Country P for a holiday not exceeding six weeks;
(2)the parties to do all acts and things to renew the children’s passports;
(3)the existing family law watchlist order to be varied to permit overseas travel; and
(4)the respondent mother (“the mother”) to do all acts and things to ensure the children can be added to his private health insurance policy.
The mother for her part sought a range of orders in her Response to Application in a Proceeding filed 4 June 2023, but by the time of the hearing sought a simple dismissal of the father’s application.
BACKGROUND
The mother was born in 1972 and is currently 51 years of age. The father was born in 1974 and is currently 48 years of age.
The parties commenced cohabitation in or about 1999 or 2000 and separated under the one roof on 6 March 2021.
There are two children of their relationship as referred to above. The children have lived with the father since separation.
On 20 December 2021, following a contested hearing, interim orders were made by a judge of Division 1 granting the father sole parental responsibility, that the children live with the father and spend time with the mother each Saturday between 10.00 am and 4.00 pm as well as orders for telephone communication. The parties were restrained from changing the children’s place of residence and an order was made for the preparation of a single expert report. The parties were also restrained from causing the vaccination of the children and the father was granted exclusive occupation of the home.
The affidavits of the parties reveal a highly conflictual relationship which includes allegations of family violence.
The father contended that in mid-2022, he was assaulted by the mother. The assault occurred in the home of the parties. He contended that the mother entered the home and physically assaulted him in the presence of the parties’ daughter such that he required stitches to a wound on his head.
As a consequence of the assault, the father was granted an apprehended domestic violence order (“ADVO”) and the mother was charged with multiple offences. The mother has entered a plea of not guilty.
The mother said that the charges are not listed to be heard until later this year and that she has made an application pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). If that application is not successful, then the balance of the charges will be heard later this year.
The children have not spent any time with the mother since the assault and the father contended that they remain extremely fearful of her.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), my reasons are by necessity short.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to disputed facts of which there are many.
Parenting proceedings are governed by Pt VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary and additional considerations that the Court is required to take into account.
The Full Court in Goode & Goode (2006) FLC 93-286 set out the procedural steps in an interim application. An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 (“Line”) and DeLuca & Farnham [2019] FamCAFC 100 (“DeLuca & Farnham”) identify a number of factors that are relevant to a determination that I am required to make in assessing the risk of return of the children to Australia.
In DeLuca & Farnham, the Full Court affirmed propositions arising out of the Full Court’s earlier decision in Line. In that respect, the Full Court in DeLuca & Farnham observed as follows:
35.In Line & Line (1997) FLC 92-729 (“Line”), the Full Court set out at [4.49]–[4.51] relevant matters when considering the authorisation of international travel as follows:
4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
…
39.In Line, the Full Court said at [4.48] that the two-fold purpose of security was to provide a sum:
a)Which would realistically entice the person removing the children to return; and
b)To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
While in Adamson & Adamson [2018] FamCA 523 (Adamson), McClelland J (as he then was) observed:
50. It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
I will address such of these matters as are relevant.
Country P is a Hague Convention country. That said, however, the mother annexed to her affidavit a document from the Australian Embassy in City Q, Country P, which identifies the following contentions:
[Country P] family law is very different to Australian law. Child custody, child access and divorce decisions within [Country P] are based on [Country P] family law.
… Foreign court orders are not automatically recognised in [Country P], but may be considered under certain circumstances.
…
The abduction of a child by a parent may not be considered a criminal offence in [Country P]. … However [Country P] law enforcement tends to view family disputes as private family matters and therefore can be reluctant to intervene.
(Affidavit of mother filed 4 June 2023, Annexure MN1)
This document is clearly not a treatise on the law in Country P but raises as an issue for consideration the enforceability of orders of this Court in Country P whilst recognising that Country P is a signatory to the Hague Convention. Neither party relied on any expert evidence as to the law in Country P or as to how a Country P court would deal with children who were not returned.
I accept that the father has ties to Australia in that he has employment in this country, owns property in the jurisdiction and that there are uncompleted parenting and financial proceedings before the Court in Australia in which he is seeking orders. His affidavit identified strong family and social connections to Australia. That points to a motivation to return to Australia.
The mother contended there are factors that suggest that the father is motivated not to return. She pointed to the fact that the parties are engaged in highly conflictual litigation. The mother also pointed to what I infer has been a longstanding attempt by the father to influence the children to view Australia adversely such that he has no intention of returning the children.
She said that the father makes the children eat Country P foods, speaks only Country P language to them, and that the children attend a Country P language school and only do Country P language homework. She contended that during the relationship, the father was consistently critical of Australia and Australians, was critical of Christianity and Australian Christians, and forbade the children and herself from mentioning god, going to church or reading the Bible. She said in her affidavit filed 4 June 2023 that the father has said to her words to the effect of “the kids only like [Country P] food and [Country P] culture” (at paragraph 14).
The mother identified that the children are dual citizens and are eligible for Country P passports. In relation to the father’s ties to Australia, she contended that, contrary to what he asserts, he has no family in Australia, all of whom reside in Country P; that he can work from Country P if he wants to; and that whilst Country P is a signatory of the Hague Convention, there would be expense in obtaining their return and she would encounter difficulties in having the children returned to Australia.
I am provided with scant evidence as to the financial position of the parties. There is no balance sheet; I am not informed about the quantum of equity in the former matrimonial home such that there can be a proper assessment of some of the risk associated with the application. There was no proposal by the father for a bond.
Consistent with the observations of the Full Court in Line as referred to earlier, I accept there is a risk consistent with the mother’s fears that the father may not return. I also accept that there is the possibility that the father’s ties to Country P are more significant than are otherwise disclosed in his affidavit. The parties are in a highly conflictual relationship and the children clearly have the capacity to live in Country P given their dual citizenship. I am simply unable to resolve the competing assertions.
I now turn to consider the s 60CC considerations such as are relevant to my determination. In applying the primary considerations, the benefit to the children of having a meaningful relationship with both parents is subservient to the need to protect the children from the risks and harms identified in the section.
The children are not currently spending any time with their mother. I am required when applying the primary considerations to give greater weight to the need to protect the children from harm than to the benefit of maintaining a meaningful relationship with both parents. Each party asserts there have been allegations of family violence. I am simply unable to make findings on the evidence other than to note the allegations and clearly act cautiously. I also note that there are allegations of psychological harm being contended by each party.
There is some evidence in the father’s affidavit of the children’s views in regard to travel to Country P but I do not regard it as determinative. I was informed that there was an expert report but I was not taken to it. Accordingly, for this application, there is no objective evidence of their views, the strength of them or their level of maturity.
I am satisfied that the children have a close relationship with their father and clearly at one stage had a relationship with their mother. There is no other matter relevant to my consideration under s 60CC(3).
I am simply unable, given the circumscribed nature of these proceedings, to resolve the competing assertions as to risk. The mother contended there is a significant risk that the father will not return them to Australia. Whilst Country P is a Hague Convention country, the documents from the Australian Embassy in City Q identify that there is a possibility that a Country P court would not recognise orders of this Court. That therefore raises the risk that a court in Country P may not assist in the return of the children to Australia. Possibilities are a basis in interim proceedings for assessing and quantifying risk (see Adamson).
I am required to act cautiously in these circumstances and in exercising that caution, I am not satisfied that it is currently in the best interests of the children that they be permitted to leave the jurisdiction for a holiday to Country P. In circumstances where I have declined to make an order in relation to the children’s travel overseas, then there is no necessity for me to make orders in relation to the issue of passports.
I have made orders for the preparation of this matter for a final hearing which will occur in March next year. At a final hearing, the trial judge will be in a better position to assess the realities of the risk as asserted by the mother. Any overseas travel will therefore have to await that final hearing.
The mother did not address any proper submission as to why it is that an order should not be made in the terms as sought by the father to ensure that the children are added to his private health insurance other than it is premature. In circumstances where the father has sole parental responsibility and there is no present application by the mother to discharge that order, then I consider it appropriate and in their best interests that such an order should be made.
I will make orders accordingly.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 22 August 2023
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