Oa**Leary and Oa**Leary
[2007] FMCAfam 206
•2 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O'LEARY & O'LEARY | [2007] FMCAfam 206 |
| FAMILY LAW – Child – travel outside Australia – risk that child would not return. |
| Kuebler v Kuebler (1978) FLC 90 434 Line v Line (1997) FLC 92 729 |
| Applicant: | MR O'LEARY |
| Respondent: | MS O'LEARY |
| File number: | DGM 2746 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 2 March 2007 |
| Date of last submission: | 2 March 2007 |
| Delivered at: | Moe |
| Delivered on: | 2 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.J. Potter |
| Solicitors for the Applicant: | Verhoeven & Curtain |
| Counsel for the Respondent: | Mr G.F. Holmes |
| Solicitors for the Respondent: | Tyler Tipping & Woods |
| Counsel for the Independent Children’s Lawyer: | Ms J. Brennan |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
THE COURT ORDERS:
THAT all previous orders in relation to the child J born in August 2002 are discharged.
THAT neither party, their servants or agents shall remove the child J born in August 2002 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.
THAT the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until further Order of the Court.
THAT there be orders in terms of the Minute of Proposed Orders dated 1 March 2007 (“the Minute”).
THAT the Minute be placed upon the court file and marked “Exhibit A”.
IT IS DIRECTED:
THAT the solicitors for the Applicant husband do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 14 days.
THAT upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
AND THE COURT NOTES:
THAT pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym O’Leary & O’Leary is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MOE |
DGM 2746 of 2005
| MR O'LEARY |
Applicant
And
| MS O'LEARY |
Respondent
REASONS FOR JUDGMENT
This application concerns the child of the parties who is J, born in August 2002, now three. The issue is whether J's mother should be permitted to take her to Thailand for a period of about three weeks.
The background to this is that the father is a long-term Australian citizen, born in Australia. He is aged 66. He has been previously married and has grown up children. The wife was born in Thailand in July 1958 and she is now 48. She is a citizen of Thailand but has a visa for permanent residence in Australia. The parties met when the wife was visiting Australia in late 1999. She has a sister who lives in Australia. She returned to Thailand. The father visited her more than once in Thailand, and then, according to the wife, he arranged for his sister to sponsor the wife to Australia in February 2001.
Their relationship had commenced in 1999 in these circumstances. The husband, says they commenced cohabitation in October 1999 and eventually separated on or about 20 November 2001. So that has to be set in the context of travelling backwards and forwards to Thailand. The husband says that shortly after that the wife informed him that she was pregnant and they agreed to marry and they were married on in December 2001. They then separated in April 2005.
These proceedings commenced in the Family Court of Australia on 20 May 2005 by the husband wanting to have time with J. It proceeded through four occasions of orders being made in the Family Court until it was transferred to the Federal Magistrates Court on 25 August 2005. It has progressed through a number of interim orders to a final hearing today. Agreement has been reached on final orders in relation to the living arrangements for J. Those orders were made earlier today by consent.
They now provide for the parties to have joint parental responsibility in relation to J; that she live with her mother and the father spend time with and communicate with her every second weekend from 5 pm Friday to 5 pm Sunday, for half of all school term vacations, two weeks during Christmas. Provision is made for celebratory and the like occasions.
There is a particular provision for September 2007 and the next of Christmas holidays in 2007 and 2008. Amongst the numerous orders that have been made is an interim order restraining the mother from taking J from Australia together with an airport watch list order. The mother's application is to take J out of Australia. She wishes to visit her mother in Thailand. Her mother is ill. Her mother is aged 66. There is no medical evidence itself about the mother's condition. The wife says that it is a heart condition. I accept that her mother, aged 66, may be ill and that a daughter would want to visit her.
She wishes to take J with her. What is put in opposition to that is principally the risk of the mother not returning to Australia either permanently or even for an extended period, or not bringing J with her. In addition, in his affidavit J's father puts concern about the house in which J will be staying with her grandmother and about traffic conditions in Thailand. As the case progressed they did not assume so much significance. The major opposition is the risk of J not being returned to Australia.
The considerations the court must take into account in this type of application have been considered by the Family Court in Kuebler v Kuebler (1978) FLC 90 434. The matters to be considered amongst others are the length of the proposed stay, the bona fides of the application, the effect on the child of not having contact with the other parent, any threats to the welfare of the child by the circumstances of the proposed environment, and the degree of satisfaction of the court that a promise to return will be honoured.
Then in addition in Line v Line (1997) FLC 92 729 these matters were referred to: the proposal for the offer of a security and the purpose of that security; that is, to procure the return and to allow the other party to take action to return, the degree of risk that the departed parent will not return, whether the country of travel is a signatory to the Hague Convention on child abduction, what risk there is of deviation to a non‑convention country and the financial circumstances of both parties.
Thailand, it is agreed, is not a Hague Convention country. The financial circumstances of the parties are that neither has any assets. The mother's evidence is that she relies on Centrelink payments as a supporting mother and children's payments and rental assistance. The father said that he became bankrupt and has only recently been discharged from bankruptcy. His only income is social security payments.
The mother has been living in Australia since 2001. Her evidence is that she intends to stay permanently in Australia. She sees Australia as the place for J to grow up, and the place where there is opportunity for J. She is enrolled in a TAFE course to improve her English and she wants to obtain employment once J is at school but at the moment his full-time care is necessary.
She has a sister who lives in Australia and lives with a boyfriend and is employed in Australia. In Thailand she has her mother, a brother who has two children who lives either with or in the vicinity of her own mother - that is J's grandmother – and a younger sister who lives in Bangkok. The mother lives in a provincial area of Thailand. The mother has a daughter who lives with the grandmother, an adult daughter who is 26.
She had a son who died some years ago. The mother travelled to Thailand with J when J was about two months old, before separation. The father went with them. That was when her son was ill and around about the time that he died.
The significant issue in this case is the degree of satisfaction of the court that a promise to return will be honoured. The independent children's lawyer - apart from the matters I have already referred to - refers to the mother's attitude to J spending time with the father. Two reports have been prepared by Mr David Bruce. The most recent one was done after he saw the parties in October last year. His report is dated 26 November. He found a loving relationship between J and both parents and he recommended a significant amount of time J should spend with her father, which is largely reflected in the orders which have now been made.
Mr Bruce referred to the specific question of the mother taking J for a trip to Thailand, and pointed out that only a court can assess the respective risks of that and determine whether the mother is likely to want to abduct the child and has any particular reason to do so or not to do so. He says this in that context.
The mother says she wants to facilitate contact between J and father if her standards are met, but there seems to be some evidence that she is not flexible or liberal about that. This could just be the result of her anxiety about J's wellbeing, but it might also indicate a negative attitude to the father having significant real involvement in J's life.
That is a considered comment by an experienced child psychologist. Other matters in his report point to why he might make that comment. In the context of this case, if there does appear to have been quite a degree of resistance by the mother to J having time with her father, but of course as opposed to that, the case has now progressed to the point where agreement is reached on final arrangements which, in the circumstances, is a substantial amount of time. But the background is what led up to it, and Mr Bruce's comment.
The mother has no property in Australia. She is not employed in Australia, her connection with Australia is her residence here for the last six years her time coming backwards and forwards for two or three years prior to that. She has her sister here and she has of course J who is born in Australia and who is an Australian citizen.
On the other hand she has a mother, a brother and a sister, a niece and nephew and a daughter in Thailand. The mother has the security of the Australian social services scheme which she would not have when she is in Thailand. There has been some debate about whether she would continue to receive Centrelink payments for J if she remained in Thailand. She may or she may not. She said that she would not be able to work in Thailand but she did say she conducted a restaurant when she was in Thailand.
She says that the house in which her mother and her daughter are living is in her name but it belongs to her daughter and she has to transfer it into her daughter's name and she must get around to doing that. The mother therefore has significant contacts with Thailand, her contact with Australia is the fact that J was born here and is an Australian citizen, but clearly the breakup between the parties was acrimonious. The mother in her affidavit alleges violence to her by the father. Their attitude to each other is apparent in their evidence today and in their demeanour. There remains considerable acrimony between the parties.
If the mother remained in Thailand, not even if permanently, but for an extended period of time, there is nothing the father could do about compelling J's return. He would have to attempt to do it through the Thai legal system. He does not have an order from an Australian court which gives him residence of J, merely orders to spend time with her. There is no evidence before me of Thai law in relation to these matters but in a foreign jurisdiction, not under the Hague Convention and without a residence order, attempting to obtain an order for a child to be handed over to a parent to be returned to Australia would be a very difficult exercise. But that is even if he could get that far because he does not have the funds to travel to Thailand and spend the extended period of time he might need there, let alone pay Thai lawyers.
There is, I consider, a significant risk at least that the mother will stay in Thailand for an extended period. She said initially in her evidence that she wanted to travel to see her mother, at a later stage in her evidence she said she wanted to care for her mother. If she stayed for say, a period of six months, that may well significantly damage the relationship between the father and his daughter.
I need to say a little about what was said about unsatisfactory living arrangements in Thailand. The father said there was no running water and there was a cesspool outside the house and there were savage dogs. That apparently is based on his evidence when he was there which now must be three years ago. The mother says there is a new house been built, that it has tap water and there are no longer any dogs there. I do not need to make any findings.
The risk that J may not be returned to Australia on its own is sufficient reason for refusing the mother's application.
To other matters require comment. It was put to the mother that the father could travel with her, she could pay for him to travel or funds could be found otherwise. She was opposed to that. She was critical of the way he conducted himself when he was in Thailand with her and J before, and she said he then returned to Australia earlier because he was more interested in a football match than being with his family in Thailand. The parties relationship is such that they could not travel together to Thailand and the mother is opposed to its happening.
The benefit of travelling to Thailand to J is that she would see her grandmother and half sister and other relatives. The risk of her not returning to Australia, even for a extended period if she did come back eventually, and the risk of the damage that would do to her relationship with her father outweighs the benefits she would receive from seeing her grandmother and her sister and the other relatives. The application to travel is refused.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Phipps FM
Deputy Associate: Paul Moss
Date: 5 April 2007
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