R and K - [2005] FMCAfam 325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & K

[2005] FMCAfam 325

FAMILY LAW – Children – application to travel overseas on holiday – mother’s ties to the United States – security.

Marriage of Kuebler v Kuebler (1978) FLC 90-434
Line v Line (1997) FLC 83843

Applicant:

Respondent:

File Number:

PAM 81 of 2002

Judgment of:

Emmett FM

Hearing date:

5 May 2005

Date of Last Submission:

5 May 2005

Delivered at:

Parramatta

Delivered on:

5 May 2005

REPRESENTATION

Ms SR appeared on her own behalf

Mr SK appeared on his own behalf

ORDERS

The children ARK, born 23 March 1993 and DAK born 2 August 1994 (“the Children”) be permitted to leave the Commonwealth of Australia with the Applicant Mother for up to 5 weeks in 2005 and each alternate year on the following conditions:
(a)That neither of the Children be absent from school for more than 10 school days for the purpose of overseas travel each alternate year;
(b)That the Applicant Mother provide to the Respondent Father no less than 28 days prior to travel a copy of airline tickets in respect of each child;
(c)That the Applicant Mother provide to the Respondent Father no less than 28 days prior to travel a detailed itinerary of the contact details where each of the Children will be staying and where they can be reached for the duration of the travel period.
Upon compliance with the conditions above the Respondent Father is to deliver to the Applicant Mother within 7 days each of the Children’s passports and upon return the Applicant Mother is to deliver to the Respondent Father within 7 days each of the Children’s passports.
The Applicant Mother is to ensure that the Children telephone their father no less than once in every 14 day period that the Children may be away.
The Respondent Father is to ensure that each of the Children’s passport remains current.
Both parties are to share equally any cost involved in the renewal of any passport in respect of each of the Children.
The Amended Application filed 1 May 2005 is otherwise dismissed.
Orders sought in the Respondent Father’s Response filed 16 March 2005 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAF 81 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Applicant Mother seeks an order from the court that the children of the parties presently aged 12 and 10 be permitted to travel with her to Kansas City, Missouri in the United State for a period of up to 5 weeks in 2005 and each year thereafter, on condition she provides to the Respondent Father an itinerary and flight information once month prior to departure. The Applicant Mother also seeks an order restraining the Respondent Father from refusing to consent to issuing a passport for the children.
Prior to making a determination in respect of this Application, I put to the Respondent Father that if the Applicant Mother was prepared to restrict her Application to travel for 2005 only, subject to the sort of conditions that were sought by the Applicant Mother but expanded upon by me, would he be prepared to consent to travel. I indicated to the Respondent Father that the court was otherwise likely to grant the Application. With reluctance, the Respondent Father agreed and then later withdrew his consent, seeking a judicial determination.
The Respondent Father opposes the Orders sought by the Applicant Mother.

Application for the children’s passports

In respect of the last Order sought, namely the Order restraining the Respondent Father from refusing to consent to issuing a passport for the children, I note that the children presently have Australian passports that are in the possession of the Respondent Father. However, I am informed that the children are also entitled to American passports. It is not clear from the orders sought which passport the Order is seeking to address. I have regard to the fact that the Applicant Mother, whilst an Australian citizen, has an American passport and the Respondent Father who is also an Australian citizen, was born in Syria. Both parties have family in their home country and indeed the children have travelled to the home country of each parent on prior occasions.
In those circumstances it is appropriate that the children's Australian passport remain current and it is further appropriate that the Respondent Father who retains possession of the passports be required to ensure that each of the children has a current passport. The cost of maintaining the passport should be shared between the parties. I do not propose to make any order in respect of any passport for the children other than an Australian passport and I do not propose to make an order in the terms sought by the Applicant Mother in the last Order of her Application.
Accordingly, the Application in respect of that Order is dismissed.

Application to travel overseas

In relation to permission to take the children overseas, the Applicant Mother relies on 2 Affidavits, one sworn 21 October 2004 and one sworn 7 April 2005.
The Applicant Mother deposes that the purpose of her proposed travel is to visit with her family, all of whom live in Kansas City. Her family comprises mother, father, sister, brother-in-law, niece, nephew,

2 grandmothers, 2 aunts, uncle, 3 cousins and their families. The Applicant Mother seeks an opportunity to share her cultural heritage with her children each alternate year for up to 5 weeks.
In 2005 the Applicant Mother seeks permission to travel with the children between 15 June and 17 July 2005. I note that that period commences two weeks and three school days prior to the commencement of the July school holidays which would otherwise conclude on 15 July 2005 with the first day back at school being 18 July 2005. The Applicant Mother deposes to particular family events around 2 and 4 July.
It is obviously important that the Children be absent from school for as little a time as possible. However, I do have regard to the fact that it is nearly 4 years since the maternal grandmother visited Australia and there has been only 1 other relative visit since that period in 2001-2002. The Applicant Mother otherwise has no other immediate family in Australia.
The Applicant Mother further deposes that the Children travelled to Syria with their father for 4 weeks in July 2003 when they visited their paternal grandfather’s village and attended the remarriage of their father.
The Applicant Mother presently works and studies in Australia and has saved $6000 towards her travel costs. The Respondent Father presently receives a supporting parent's pension and does not otherwise work. The Applicant Mother pays child support to the Respondent Father in an amount of $107 per month.
The current Orders for residence and contact with the children include the Children living with the Applicant Mother each alternate week from Friday to Wednesday and that the parties share the holidays and other significant days. The result of those orders is that the Children spend 10 nights in each 4 week period with their mother and the rest of the time with their father.
The Respondent Father opposes the Applicant Mother's travel with the Children on the basis that he fears that the children may not return to Australia. He submitted in the first instance that the United States was not a party to the Hague Convention for the purposes of the enforcement of any parenting orders in that country. I informed the Respondent Father that indeed the United States was a Hague Convention country, however, that did not allay his fears. The Respondent Father submits that the Applicant Mother has all her family in Kansas City and has no financial or emotional ties to Australia. He states that she does not own any real estate or other substantial asset and could readily find employment in the United States.
The Respondent Father deposed in his Affidavit that the Applicant Mother stated to him in 1997 that once she finished her ultrasound studies she wanted the family to return to America and that in 1998 and 1999 she also suggested that the family move to America. The Respondent Father states that he also has concerns with continuing terrorist threats against the United States. He raised further concerns about the effect on the Children's schooling by travel and any effect on other activities such as sport and music lessons.
Whilst these are all valid concerns to be expressed by the Respondent Father, they must be balanced against the benefit for the Children in the opportunity to travel with their mother to her homeland, share her family and experience her culture.
In the case of the Marriage of Kuebler v Kuebler (1978) FLC 90-434 the Full Court stated (at 77,205):
“That the considerations that should be given to an application which involves a custodial parent taking a child out of the jurisdiction, without being exhaustive, include:
(a) the length of the proposed stay and the jurisdiction;
(b) the bona fides of the application;
(c) the effect on the child of any deprivation of access;
(d) any threats to the welfare of the child by the circumstances of the proposed environment;
(e) the degree of satisfaction in which the court bases its assessment of the party that a promise to return to the jurisdiction would be honoured.”
In considering the length of the proposed stay, I have regard particularly to any absence from school that the Children would be subjected to as a result of any travel and the deprivation of contact for the children with their father whilst overseas.
In relation to the absence from school, it is possible to minimise that occurrence by an appropriate order that would provide that the children not be absent for more than 2 weeks due to overseas travel in any alternate year of travel.
In relation to deprivation of contact with their father, I note that the Respondent Father has the children for 18 nights out of 28 during term time and that the parties are essentially sharing residence of the children. That is a significant amount of contact which I am satisfied would not endure any lasting detrimental effect by suspension for up to 5 weeks to allow the children the benefit of travel and time with their mother's extended family.
In relation to any threat to the welfare of the children by the circumstances of the proposed environment, namely Kansas City in the United States of America, whilst sadly one could never rule out any threat in any country, we now live in a climate where there is an inherent risk in any travel. However, there is no evidence before me of any peculiar damage to Missouri and the United States by way of government warning or otherwise.
Whilst I accept that the Applicant Mother has substantial family ties in the United States beyond those in Australia, she has otherwise commenced a Diploma of Medical Ultrasonography at the Australian Society for Ultrasound and Medicine and has successfully passed part one of that Diploma.
The Applicant Mother is presently employed at Bankstown Radiology and I have regard to a letter from the practice manager from Bankstown Radiology dated 6 April 2005 in which he states that the Applicant Mother has never given the impression that she would not return from holidays and has had holidays during her employment and discussed with eagerness her desire to travel overseas with her children.
He also stated that he has heard the Applicant Mother say on many occasions, "I am from the States, but I have lived here for 14 years and I consider this my home."
The Applicant Mother frankly acknowledges that she does not enjoy living in the Campsie area but does so in order to live closer to her children and that she intends to move to another area when they are older. I do not find this evidence to be evidence of an intention to leave Australia or not to return with the children from the United States.
Accordingly, I accept the bona fides of the Applicant Mother's Application and her promise to return to the jurisdiction would be honoured.

Security

In accordance with the authorities in Line v Line (1997) FLC 83-843, the Court must also give consideration to the issue of whether or not the travel destination country is a party to the Hague Convention and the question of whether it is appropriate that some security be provided by the departing parent prior to travel being undertaken. I have already dealt with the question of the Hague Convention and have found that the United States is indeed a party to the Hague Convention.
I now turn to consider the question of security.
In the case of Line v Line the Full Court stated:
“The next matter is obviously the degree of risk 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 strengths 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 family and/or close friends.”
The Court went on to state that:
“It is relevant in the exercise of the discretion whether or not to impose security to have regard to the financial circumstances of both parties and the relative hardship that the departing parent would suffer by the imposition of security as compared with the hardship of the non-departing parent would suffer if the security was not present or fixed at some appropriate level.”
The purpose of security was stated by the Court as being:
a)to provide a sum that will realistically entice the person leaving to return; and
b)to provide a sum to adequately provide the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain a return of the children.
In this case there is no evidence that the Applicant Mother has any property or substantial asset in Australia or in the United States. She states that her gross income is $912 a week and that she has savings of about $6000, which is intended to provide for the cost of travel. She states that she has ticket prices ranging from $2500 to $3500 each and acknowledges that she still has more funds to raise to afford travel. She states that she cannot afford to leave a bond.
There is no evidence of the Respondent Father that the Applicant Mother’s financial position is other than as she has stated.
This is a difficult case in considering the issue of a bond because the Applicant Mother plainly has substantial family in the United States, no real property in Australia and a high level of conflict with the Respondent Father over child-related issues. However, I accept that the imposition of security will place some significant hardship for the Applicant Mother having regard to her financial position. On the other hand, I accept there is an obvious hardship for the Respondent Father in the event that there is no security or bond having regard to his financial position in the event that the Children are not returned to Australia.
I am of the view that the benefit to the Children in establishing bonds with their mother's extended family and experiencing her culture and heritage are significant. I am also impressed by the Applicant Mother's commitment to her studies in Australia and the job that she has obtained in practical furtherance of those studies. I also have regard to the ages of the Children, being 12 and 10. However, I have no evidence before me as to the particular maturity of either of the Children.
The level of conflict between the parents causes me significant concern. The parties sought only to criticise each other in the face of the Court and appeared to have little regard for any concern or desire expressed by the other where it departed from their own view. However, the Respondent Father did acknowledge that there was a benefit for the Children in being able to travel, and as stated earlier, indeed travelled himself with the Children to Syria in 2003.
Presumably, the Respondent Father's travel occurred in similar financial parlance and in similar level of conflict and with similar filial ties and attractions to his home country; indeed I note he married there. Most importantly, he returned to Australia. The circumstances would appear to be little different today in respect of the Applicant Mother's application.
Accordingly, I am satisfied, having regard to all the circumstances and the evidence before me, that it is not necessary or appropriate to order that security be provided.
Accordingly, subject to the Children not being absent from school for more than 2 weeks in any alternate year of travel, and subject to the provision to the Respondent Father no later than 28 days prior to travel of copies of the Children's airline tickets, itinerary and contact details,

I am satisfied it is in the best interests of the Children that the Application be granted.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 26 May 2005