OYER & PEDRU

[2010] FamCA 577

FAMILY COURT OF AUSTRALIA

OYER & PEDRU [2010] FamCA 577

FAMILY LAW – CHILDREN – Parenting orders – Overseas travel – Mother opposes travel to Turkey – Considerations of best interests including entitlement of child to share in father’s cultural heritage – Application for travel allowed on condition of $20,000 security – Consequential orders including make-up time

Family Law Act 1975 (Cth)
The Hague Convention on the Civil Aspects of International Child Abduction

Line & Line (1997) FLC 92 729

APPLICANT: Mr Oyer

RESPONDENT: Ms Pedru

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2486 of 2008

DATE DELIVERED: 8 JULY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 2 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PUCKEY

SOLICITOR FOR THE APPLICANT: NEVETT FORD

COUNSEL FOR THE RESPONDENT: MS SPEHR

SOLICITOR FOR THE RESPONDENT: ALTAVILLA VESSALI

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS DOWLER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DANIELLE WEBB

Orders

1. That to the extent that the following orders are inconsistent with paragraph 3 of the orders made 2 October 2009, the said paragraph 3 is suspended during the operation of these orders.

2. That paragraphs 11 and 12 of the orders made on 13 June 2008 by Walters FM are discharged.

3. The Court requests that the Australian Federal Police remove the name of A (a male child) born … February 2004 from the Airport Watch List at all points of international arrivals and departures in Australia.

4. That the father MR OYER is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to Turkey for a holiday once per calendar year during periods which coincide with the child’s school holidays as follows:

   (a)for the calendar years 2010 and 2011, for a period not exceeding 21 days (which shall include the day of departure from Australia and the day of the return to Australia); and

   (b)for the years 2012 and thereafter, for a period not exceeding 28 days (which shall include the day of departure from Australia and the day of return to Australia).

5. The father’s departure from Australia with the child is subject to the following:

   (a)No later than 28 days before the day of departure, the father providing to the mother, copies of the travel itinerary including the addresses and all relevant telephone numbers to enable regular telephone communication between the mother and the child together with copies of  return airline tickets; and

   (b)No later than 4 pm on the 14th day before the day of proposed departure from Australia, the father depositing with the mother’s solicitor NEVETT FORD (or such other solicitor as she may nominate) the sum of $20,000 to be held upon trust by the said solicitors as trustees pursuant to the terms of these orders.

6. That the mother have liberty to apply on short notice to make an urgent application for the release of the trust funds referred to in paragraph 5 of these orders if the father has not returned the child to Australia within 48 hours of the scheduled date referred to in the itinerary of the father.

7. That upon the father returning the child to the mother, he shall be entitled to an immediate release to him of the trust funds referred to in paragraph 5(b) of these orders upon his oral application to the said solicitors.

8. That whilst away from the mother pursuant to these orders, the father facilitate the child communicating with the mother by telephone at least once during each alternate day at the expense of the father.

9. During the long summer holidays after the child has travelled internationally pursuant to these orders, the child spend time with the mother for an uninterrupted block period equal to the length of the child’s absence overseas at times to be nominated by the mother and otherwise the holiday period is to be divided equally.

10. Notwithstanding paragraph 9 above, the child is to spend New Year’s Eve on 31 December 2010 with the father and similarly in each even-numbered year thereafter.

11. That both THE FATHER and THE MOTHER forthwith do all acts necessary and sign all applications required to apply for a passport for A born … February 2004 but failing the joint application being completed by 4 pm on 30 July 2010, THE FATHER may make such application without first obtaining the consent of the child’s mother.

12. That the independent children’s lawyer be discharged from the proceedings.

13. That all outstanding applications be otherwise dismissed.

14. Pursuant to s.65DA(2)and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2486  of 2008

MR OYER

Applicant

And

MS PEDRU

Respondent

REASONS FOR JUDGMENT

1. This is a case about A, who was born in February 2004.  He lives in a shared arrangement with his parents.  Both love him dearly. 

2. The argument revolves around whether the child should be able to travel to Turkey each year in the June/July period for the purposes of visiting his grandfather and grandmother there but also to share in his own cultural heritage along with his father.  His father is Turkish by birth but has lived in Australia since 1989. 

3. A’s mother is of Italian descent.  She opposes the overseas travel for a number of reasons.  They are:

   (a)principally, she does not believe the child will be returned;

   (b)as a country, Turkey is a place of risk according to the warnings of the Department of Foreign Affairs and Trade;

   (c)The child is too young to travel for a four week period, having never been away from either parent for anywhere near that.

4. I shall refer to the parties as husband and wife although they are now divorced.

5. Both parties are recipients of low income Centrelink benefits.  The husband is a handyman but has been unable to work for a number of years because of a back injury and the wife’s position is that she is engaged in home duties.  The husband is 45 years of age and the wife 44.

6. The parties married in Melbourne in 2002, separated in 2007 and were divorced in May 2008.

7. The litigation over the child began in May 2008 but it was the husband who issued the proceedings.  The case has been in the Federal Magistrates Court and ultimately here with allegations in relation to sexual abuse and violence. 

8. Orders were made by consent of the parties by Registrar Kaur on 8 October 2009.  In essence, those orders provide for the child to live with the husband from 10.00am on Wednesday until the following Sunday at 10.00am in the first week of two weeks followed by 10.00am on the Thursday to 10.00am on the following Sunday in the second week.

9. In between those final orders and when the current proceedings began, there were several hearings and various reports prepared.

10. Nothing I heard in the application before me suggested that there was any concern about the care of the child in the possession of either of his parents nor that each is anything other than a responsible parent.

11. Final orders between the parties were made relating to property proceedings in December 2009 at a conciliation conference. 

12. Despite the consensus in relation to the parenting orders and the property matters, the parties have little regard or trust for one another.

13. The husband’s application was necessitated because on 13 June 2008, Walters FM made an order restraining both parties by injunction from taking the child out of Australia.  I propose to discharge that order on the basis that apart from the fact that it seems sensible for me to allow the child to travel to Turkey with his father as is proposed, the evidence showed that the wife has a desire in the future to travel to Italy so that the child can enjoy the many benefits of her cultural inheritance.  On the basis of the evidence before me now, there is little reason to maintain the airport watch order.

14. The application before me began when the husband filed it on 18 March 2010. He sought an order that he be allowed to take the child to Turkey for four weeks each year in the June/July period and that the wife sign any necessary documents to enable him to obtain a passport for his son. He sought orders in relation to s 106A of the Family Law Act 1975 (Cth) (“the Act”) in the event that the wife refused to sign.

15. On 27 May 2010, the wife filed her response simply seeking to maintain the injunction in relation to the child leaving Australia and otherwise dismissing the husband’s application.

16. The child’s interests were represented by an Independent Children’s Lawyer who in turn, was represented by counsel.

17. Both parties filed affidavit material to which I shall briefly refer and both parties gave evidence which was subjected to cross-examination.

18. The husband’s evidence was that he principally wanted to return to D in Turkey where he will stay with his parents.  He referred to the Turkish culture and the fact that his father is currently ill.

19. Considerable time was spent by counsel for the wife cross-examining the husband about the nature of his father’s illness.  Whilst there may be some dispute as to the extent of the grandfather’s state of health and whether or not he can travel, it does not take much imagination to say that a man of 81 years of age whose homeland is Turkey, is unlikely to be travelling too far either around the world or in his own native area.  I was presented with a medical certificate signed by a number of medical practitioners all of which indicates that the grandfather is not well.  I must say I am not surprised having regard to his age. 

20. It is important to note however that the parties themselves went to Turkey in 2005.  This surprisingly, was during a period of time when they were in fact separated.  The child at that stage was only two years of age.  The parties had had an unusual and unpleasant relationship in that they had separated under the one roof and then physically but despite the physical separation, they travelled together to Turkey where on the wife’s evidence which I accept, she spent time with the husband alone around the Turkish area whilst the child was sleeping during the day.  Despite the relationship, the animosity between the parties brought about the conclusion of their relationship and they ultimately permanently separated.

21. The husband referred to the fact that he wanted his son to enjoy the cultural benefits of Turkey but the wife’s view was that the child would not be particularly aware of those matters nor of the distances involved.  The child could not possibly have a recollection of what happened in 2005.  

22. The wife does not trust the husband and her case predominantly revolved around the fact that she did not think the husband would return the child to Australia.  The husband’s evidence was that he came to Australia in 1989 and was made an Australian citizen in 1991.  He relinquished his Turkish citizenship in 2004.  Two important points arise out of that piece of evidence.

23. The first issue is that the husband was obligated to undertake military service in Turkey because he was a Turkish citizen.  His renunciation of his Turkish citizenship meant that he did not need in the future to undertake that service.  However, if he wanted his Turkish citizenship again, he could make an application in Australia, undertake some weeks of military service and pay a significant sum of money.  It would then most likely be granted.  If he made the application in Turkey, then the reality would be that he would spend significant time undergoing military service.  The husband was cross-examined about all of this at some length and I am satisfied that he neither has the desire nor the capacity to undertake either of those courses of action. 

24. The second matter relates to a strange set of events concerning a document signed by the husband in relation to obtaining a tax file number for the child.  I am not at all clear why the application was made but in my view, it matters little.  The wife’s evidence was that I should not trust the husband because in March 2008 he had made the application in which he described the child as a “non-resident”.  That claim was clearly not right and the wife imputed a sinister motive to it.  However, within 10 days of receipt of the acknowledgment of the tax file number from the Australian Taxation Office, the husband realised he had made the error and corrected it.  The explanation of the husband as to why the error was made in the first place quite frankly was plausible.  The application form which was annexed to the wife’s affidavit showed a question in bold type and then some simple explanatory type questions underneath it.  The husband’s explanation is that he read the explanatory questions and answered the bold question incorrectly.  Looking at the document, I am quite satisfied that that is probably what happened.  Importantly however, the issue hid the real problem.  The wife knew of this incident when she swore her affidavit in May 2008 in the proceedings in the Federal Magistrates Court.  I am not at all comfortable about her logic in indicating the initial application but not the correction of the error because in evidence, she said she had made some inquiries at the Australian Taxation Office.  She was therefore aware of all that the husband had done.

25. On the evidence, having heard both parties, I am satisfied that there is no reason for the Court to be concerned about the issue of the “non-resident” application for the tax file number.

26. The husband’s evidence went further and said that he could not stay in Turkey for more than three months because he was not a Turkish citizen.  He was not challenged about that.  Although the wife was of the view that he had cancelled and renewed his Turkish citizenship over the years, there was no evidence that contradicted the husband’s evidence about the precise dates.  The wife knew that this was an issue.  No attempt was made to call evidence from the Turkish consulate in Melbourne to show what she was saying was correct.

27. The husband said that in 1991 he obtained Australian citizenship and has treated Australia as his home ever since.  He has returned to Turkey twice or three times.  The wife did not deny the husband’s renunciation of his citizenship but linked it to the fact that he did not want to return to do military service.

28. The husband on the other hand brought evidence to show that he was no longer a Turkish citizen.

29. The husband also said that he had family ties in Australia and had no reason therefore not to treat this country as his home.

30. In his evidence, the husband said that there were no threats to the safety of his son by travelling in Turkey.  That evidence was tested after the wife filed her affidavit indicating that Turkey is the subject of a Department of Foreign Affairs and Trade warning.  It is not the most serious warning but certainly indicates that there have been terrorist activities and in the very town in which the husband’s parents live, there was a bombing in very recent time.  ….

31. The wife produced not only the warning but also photographs which she said were taken in 2005 of a constant military presence in Turkey.  The husband’s explanation for the photographs was that they were taken at a street parade.  The wife said that whilst that may have been so, in the days that she was in Turkey in 2005, there was military presence everywhere.  Whilst I cannot make a determination as to the accuracy of either of those assertions, I note that in the photograph tendered by the wife, there is a picture of a little boy standing beside a tank.  It certainly does not look like a security issue but rather a military parade.

32. Both counsel for the husband and for the Independent Children’s Lawyer pointed to the fact that there have been terrorist attacks in the major cities all around the world and Australia has been fortunate but certainly still the target of threats.  There is no reason for me to say that Turkey is any different from any other place to which one would take a child.  It is important to note that both the husband and the wife took the child to Turkey in 2005 although the wife maintained that she was not aware of the security problems at that stage.  That is rather odd having regard to the age of the child at that time not to mention that the parties were physically separated.

33. The husband was questioned about the fact that the area where his parents live and to which he intends to go, is close to the Syrian border.  Turkey is surrounded by Syria, Iran and Iraq all of which countries are affected by terrorist activities.  Having regard to the responsible attitude of the husband and the protective nature of his conduct up until now, I see no reason to say that he would not ensure that the child was well cared for.

34. Counsel for the wife in her final submission said that if an incident did occur, the child would be faced with the problem of being completely isolated because he does not speak Turkish.  By the same token, that could happen to any person let alone a child.  It is not a factor that I should take into account in this particular case.

35. Predominantly, the wife’s case revolved around a statement which she said in her affidavit amounted to a threat by the husband not to return the child.  She said in evidence something slightly different.  When cross-examined, the wife said that in 2006-2007, while watching a television program, a film was displayed in which a child was abducted by his father to Greece and the mother was very distressed.  The wife said that the husband’s reaction was to simply say that the “stupid bitch deserved it” and she was shocked by his lack of empathy for the woman.  I could not draw any adverse inference against the husband in relation to that incident because it does not amount to a threat to take the child and not return him.  When pressed, the wife said there was a second incident in January 2008 in which he told her that he could take the child away and not return him.  This evidence was never given in the Federal Magistrates Court proceedings.  The reference in those proceedings related to the earlier incident in 2006-2007.  The husband’s evidence was that he did not make any such threat. 

36. I am satisfied on the evidence of the husband that whatever he said, was not intended as a threat.  I find that because of the fact that there have been a number of opportunities from 2005 onwards in which the husband could have taken the child without being stopped and could have returned to Turkey if that is what he meant.  Admittedly in 2006, the injunctive order was put in place by Walters FM.  However the parties had long separated by that stage and the incident in January 2008 to which I have referred had taken place.  At no stage thereafter, did the husband do anything of that nature.  During that same period of time, serious allegations in relation to parenting were made and if ever there was going to be a situation where the husband might have taken the law into his own hands, one would have expected it then. 

37. In all the circumstances, I find that there is no basis for the Court to be concerned about the threat.

38. It was common ground between the parties that Turkey is a signatory to the relevant Hague Convention.  Despite that, the wife was of the view that the husband could skip over the border into one of the neighbouring countries and retain the child in those places where the Convention did not apply.  For the reasons I have already set out, I am satisfied there is no basis for that concern.

1. It is clearly distressing for any person who has to obtain the return of a child even in countries where the Convention operates.  There are travel expenses not to mention legal costs.  In circumstances where trust is absent, it seems to me that it is appropriate to consider giving some comfort to the party opposing the travel.  That comfort is a cash security.

2. The husband was cross-examined about his financial circumstances and it would appear that any money that he had is now gone.  Whilst the wife expressed incredulity about the fact that all of that money was gone, the explanation was that he had spent it on legal expenses.  The husband was not challenged about that and certainly no request had been made either at an interlocutory stage or during the trial for him to produce any of his bank records.  I see no reason therefore to doubt what he said.

3. When asked as to how he would cover the cash security problem, he said that he would borrow the money from family and friends.  He has no assets otherwise which he could use for the purposes of security therefore it is unlikely that he would be able to borrow money from a financial institution.  Borrowing money from family and friends in those circumstances should give some comfort to the wife because if there was any risk that the husband would not return, they would clearly lose most if not all of their money.

4. It seems to me this is a case where I ought to require the husband to pay a $20,000 before being permitted to leave the country with the child.

5. The other issue in relation to the travel question if the child was permitted to go was whether there should be some makeup time for the wife.  She was quick to say that that should occur.  The husband in cross-examination had no hesitation in saying that that should be the case.  There was considerable dispute between the parties as to whether it should include Christmas and New Year if the child went for the sort of period that was contemplated by the husband.  The husband during the luncheon break in the trial produced a set of minutes which I think are eminently reasonable in the circumstances.

6. I indicated that I had some reservation about the child being away from his mother for four weeks.  That is because he had not been separated from either parent for more than a few days until now.  In my view, that situation should continue for two years and I propose that the travel be limited during the next two years to three weeks.  I see no reason why the first period should not be in September this year during the school holidays and the makeup time of three weeks can take place during the summer holidays.  In June/July 2011, the husband can again have the child for three weeks and from 2012 onwards during that period or such other period as is agreed, the period can be extended to a four week duration.

7. In every case, the decision of a parenting nature has to be made with the best interests of the child in mind.

8. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court.

9. Section 64B(2) provides that a parenting order may deal with any aspect of parental responsibility for a child not otherwise covered by the section. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which relevantly provides that the best interests of children are met by 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.

10. To have a meaningful involvement in the life of a child where there are issues of cultural heritage as well as extended family requires consideration of allowing a child to travel internationally to experience those things.

11. The principles underlying the objects provide amongst other things that children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). Fundamental to my decision in this case is s 60CA which says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

12. In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests.

13. Turning to the question of s 60CC, it is quite clear that most of the factors are not in dispute.  As I have indicated, neither parent was challenged on their capacity or responsibility as a parent.  A has the right to share his cultural history and that should apply in respect of both his Turkish and his Italian backgrounds.

14. There was discussion about whether or not being allowed to go overseas impacted upon the meaningful relationship that the child has with his father.  I do not believe that is a significant issue in this case because the relationship with both parents is very sound.  There is no suggestion of any family violence that impacts upon these orders nor is there a need to protect the child from harm by being exposed to such abuse or violence.

15. In the circumstances it is appropriate to make the orders of the type to which I shall shortly turn.

16. I do not propose to deal with the issues of equal shared parental responsibility because those matters have already been dealt with by previous orders and as such, there is little point in dealing with them again.

17. This case is about the assessment of risk.

18. The factors to be considered in the assessment of that risk, that is of non‑return of the child, were set out by the Full Court in Line & Line (1997) FLC 92 729.

19. The factors were said to be as follows:

    (a)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);

    (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

    (c)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); and

    (d)Whether the country of travel is a signatory to the Hague convention.

20. Counsel for the Independent Children’s Lawyer submitted that cases such as those involving international travel were difficult to make submissions about and even more difficult for judges to decide, because no-one could foretell the future and the decisions amounted to a leap of faith.

21. The Court determines discretionary matters within the framework of the evidence that it is presented.

22. It is obvious that I cannot do more than balance the evidence of the parties and determine what is best for A in that context. It is an exercise of doing the best that one can. I cannot make a finding that the husband’s promise will be honoured.

23. I am satisfied on the balance of probabilities that in assessing the risks, I can give weight to the fact that the country to which the child will be taken is a signature to The Hague Convention on the Civil Aspects of International Child Abduction. No evidence was presented by the wife and it was certainly not put by the Independent Children’s lawyer, that there was no justice mechanism in Turkey to which the wife could turn if the husband did not return the child. As such, because of the Hague Convention, I should conclude that should the husband fail in his obligations under these orders, Turkey does have legal mechanisms or institutions in place for the return of children taken to it from Australia who are not returned.

24. The wife is concerned that Turkey borders Syria, Iran and Iraq which do not recognise the laws that Australia and Turkey do. I am not satisfied on the balance of probabilities that there is any basis to find any risk that the husband would deliberately take the child into a neighbouring country to avoid the Convention.

25. I am satisfied that with the bond that I propose to put in place, there is sufficient security to ensure the return of the child from Turkey within the Turkish legal system in the event of his non‑return. Whilst the purpose of the bond is often spoken of as being a form of security such as bail in a criminal matter, it is more to protect a person such as the wife in being able to quickly access the relevant sum to enable the instructing of lawyers, the payment of costs and the necessary travel required to obtain the return of the child. The quantum therefore has to reflect those matters. In this case, because the Hague Convention applies, the costs and expenses should be reasonable. In my view, allowing for about $5,500 travel costs, some accommodation of about another $1,000 and the balance required to cover legal costs, a total of $20,000 is adequate.

26. It is the husband’s evidence which I accept, that he does not have that sum and will have to borrow but that in itself adds to the security because he will be borrowing from family members.

27. I have considered the wife’s concern about the impecuniosity of the husband and the somewhat doubtful financial position of his parents in Turkey but apart from the fact that the security deposit alleviates that risk, the husband indicated that his father has the capacity to contribute to the travel costs and the Turkish family will provide accommodation there at no cost. As such, I consider the risk of non‑return of the child because of an inability to return him from Turkey to be low.

28. I am satisfied that not only because of the husband’s citizenship status in Australia but also because of his ties here and the longevity of his residence, the risk of non-return is low. That view is supported by the evidence that the husband has now no military service obligations in Turkey because of his Australian Citizenship but even if he did decide to renounce that and renew his Turkish Citizenship, he would then face consequences in Turkey which were not of his desire or liking. That in turn reduces the husband’s possible motives not to return.

29. In terms of credibility, the husband has complied with orders to date. There was no argument about his capacity or responsibility as a parent. It is of significance that the husband has maintained a desire to be a significant parent during the life of the litigation. There has been no deviation from that path which would suggest he would do something irresponsible.

30. One of the matters that I canvassed in discussion was the relationship between the parties and their conflict as parents. There is no trust and little respect. Their ongoing conflict notwithstanding the making of final parenting orders now only arises over A. There is no sign of that abating. This trip is infected by that mistrust. There is little I can do about that. The wife conceded that there had been counselling and therapy. There is a long way to go.

31. I am satisfied that the continuing ties of the husband in Australia albeit not financial, make the non-return a low risk.

I certify that the preceding Sixty Nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 July 2010