Raycliff and Nilssen (No.2)

[2013] FCCA 1810

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAYCLIFF & NILSSEN (No.2) [2013] FCCA 1810

Catchwords:
FAMILY LAW – Final arrangements for child aged six years – application for child to travel overseas to (country omitted) in forthcoming school holidays – mother (country omitted) by birth – proposed travel opposed by father on grounds of safety and because of concerns the child may not be returned as promised – assessment of risk of non-return – (country omitted) not a signatory to Hague Convention – assessment of mother’s ties to Australia – bona fides of application – assessment of potential benefits of proposed travel – whether financial security should be required – best interests.

Legislation:

Family Law Act 1975: ss.60B, 60CA, 60CC, 64B

Australian Passports Act 2005 s.11

Raycliff & Nilssen [2012] FMCAfam 901
Raycliff & Nilssen [2013] FCCA 393
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hing [2010] FamCA 617
Bright v Bright (1995) FLC 92-570

Applicant: MR RAYCLIFF

Respondent: MS NILSSEN

File Number: ADC 1801 of 2012

Judgment of: Judge Brown

Hearing date: 31 October 2013

Date of Last Submission: 31 October 2013

Delivered at: Adelaide

Delivered on: 8 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Childs

Solicitors for the Applicant: Matthew Mitchell

Counsel for the Respondent: Ms Dickson

Solicitors for the Respondent: SE Lawyers

ORDERS

1. The mother be permitted to take the child of the marriage X born (omitted) 2007 (hereinafter referred to as “the child”) outside of the Commonwealth of Australia between 1 January 2014 and 28 January 2014 for the purposes of a holiday to (country omitted) and any transit points in between such destination and Australia notwithstanding the consent of the father has not been obtained to such travel.

2. In order to facilitate the travel envisaged in order (1) hereof the father deliver the child’s passport to the Registrar of the Court at Adelaide within seven (7) days of the date of these orders and that thereafter the Registrar retain such passport releasing it to the mother or her solicitor upon production of written confirmation of the travel envisaged in order 1 hereof, which is to include proof of purchase of a return ticket for the mother and child between Australia and (country omitted). 

3. The mother is directed to return the child’s passport to the Registrar of the Court at Adelaide within seven (7) days of her return from (country omitted) following the travel envisaged in order (1) hereof and thereafter the passport be retained for safekeeping by the Registrar pending further application to the court or other order.

4. In the event that the name of the child is maintained on the Airport Watch list kept by Officers of the Australian Federal Police at each point of entry and departure to Australia the child’s name be removed from the Airport Watch list as a consequence of these orders.

5. The mother provide the father with a detailed written itinerary of the child’s travel outside of Australia including flight times of arrival and departure; flight numbers; and addresses of accommodation at which the child will be staying; with the itinerary to be provided to the respondent father twenty-one (21) days prior to the date scheduled for the child’s departure from Australia.

6. Concurrently with the production of the itinerary in order (5) hereof, the mother shall provide to the father proof in writing of the purchase of a return ticket for herself and the child between Australia and (country omitted) in respect of the travel envisaged in order (1) hereof. 

7. The mother is directed to obtain comprehensive travel insurance for the child to cover the entire period during which the child is outside of Australia pursuant to order (1) hereof and is directed to provide the father with a copy of the resulting insurance premium twenty-one (21) days prior to the date scheduled for the child’s departure from Australia.

8. The mother cause a surety in the sum of $25,000.00 to be lodged with the Registrar of the Court at Adelaide no later than ten (10) days prior to the date scheduled for the mother and child’s departure from Australia in accordance with order (1) hereof with the sum to be returned to the surety pledging the sum upon the mother producing proof of the child’s return to Australia by the re-lodgement of her passport in accordance with order (3) hereof.

9. The father have telephone communication with the child during the period she is outside of Australia pursuant to order (1) hereof each Wednesday and Saturday to coincide with 8:30pm Australian Central Summer time with the mother to initiate the call to the father’s designated landline telephone number at her expense.

10. The orders for the father to spend time with the child made on 31 October 2013 be suspended whilst the child is outside of Australia and in lieu of the time the father would otherwise have spent with the child during January 2014 by way of make-up time the father spend time with the child on five additional Saturdays prior to the time of her departure from Australia between the hours of 9:00am and 2:00pm and five additional Saturdays between the hours of 9:00am and 2:00pm following her return to Australia.

11. All applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1801 of 2012

MR RAYCLIFF

Applicant

And

MS NILSSEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Raycliff and Ms Nilssen are the parents of X born (omitted) 2007.  The parties have been in dispute concerning arrangements for X’s care, since they finally separated in early 2012, when Ms Nilssen left the former family home with X. 

2. Between June 2012 and now, the father has been spending regular periods of day time contact with X.  In the period shortly after separation, the time was subject to supervision.

3. The background to the dispute between the parties is set out in two previously delivered judgments of the court.[1]  The mother opposed X spending overnight time with the father. 

   [1]  Raycliff & Nilssen [2012] FMCAfam 901 and Raycliff & Nilssen [2013] FCCA 393

4. For his part, Mr Raycliff has consistently wanted to spend as much time as possible, with X, particularly for longer periods of time with him at his home.  He aspired to an equal time regime in respect of X.

5. The evidentiary issues in dispute between the parties centred on the nature of their previous relationship.  Ms Nilssen asserted that the father had threatened and coerced her in the past and was intent on undermining her to X.  These allegations were resolutely refuted by Mr Raycliff. 

6. The various issues in dispute, between the parties, were fixed for adjudication in a three day trial, scheduled to begin on 30 October 2013.  To the parties’ credit, with the assistance of their respective lawyers and after hearing oral evidence from the court appointed expert, Dr A, Mr Raycliff and Ms Nilssen were able to agree on final parenting arrangements for X. 

7. It was agreed that the father would begin to spend longer periods of time, with X, during daylight hours and, in May of 2014, he would begin to spend overnight periods of time with her, which would be incrementally extended. 

8. One issue remains incapable of being consensually resolved.  It concerns Ms Nilssen’s desire to travel overseas with X, to (country omitted), in January of 2014.  Ms Nilssen wishes to be away for about four weeks.  Mr Raycliff is opposed to the travel on a number of grounds. 

9. Firstly and most fundamentally, he fears the mother may not honour her promise to return to Australia with X and, as (country omitted) is not a signatory to The Hague Convention[2] it may be impossible for him to return the child to Australia, through legitimate channels.

   [2] Convention on the civil aspects of Child Abduction signed at the Hague on 25 October 1980

10. Secondly, he has grave concerns about the safety of (country omitted), particularly the area of rural (country omitted), from which the mother derives and where she wishes to visit her family.  He is concerned that there are inadequate medical services there and many lurking hazards, potentially dangerous to a child of X’s age, who has hitherto grown up in Australia, a highly developed country, in marked contrast to (country omitted). 

11. Thirdly, he is concerned that the proposed trip, given its duration of four weeks, will delay the advancement of his relationship with X, which is envisaged by the recently agreed consent parenting order made by the court on 31 October 2013.

12. Finally, he believes X is just too young to benefit from such a trip and is likely to be emotionally overwhelmed by (country omitted), an environment very different from the one with which she is familiar based in the (omitted) region of South Australia.  He has indicated that he believes X will be ready to visit (country omitted), when she is about twelve years of age.

13. The mother’s wish to visit (country omitted) is easily explained.  She was born in (country omitted) and all her family live there. She has not seen them since April of 2009.  She misses her family, particularly her parents, who are elderly. 

14. She wishes X to meet her grandparents and extended family in (country omitted).  In addition, her sister is getting married in January of 2014.  Ms Nilssen believes that it would be beneficial for X to be able to take part in a traditional (country omitted) marriage ceremony, involving her aunt. 

15. These proceedings are directed to resolving this dispute between the parties and determining whether it is likely to be in X’s best interest to travel outside of Australia, to (country omitted), as the mother proposes, and if so, how long that trip should be and what conditions should attach to it.

The evidence

1. The issue of overseas travel seems to have arisen in the course of settlement negotiations between the parties.  It was not an issue which was directly raised in their respective trial affidavits.  In these circumstances, each party gave oral evidence concerning the issue and was cross-examined by counsel for the other. 

2. Accordingly, I was able to observe each of the parties at close hand in the witness box and make some assessment of their respective credibility and motivation in respect of the vexed issue of overseas travel for X. 

3. Ms Nilssen gave her evidence in (country omitted), which was translated into English by a professional interpreter.  My impression of her was of a gentle and dignified person, who answered questions honestly and directly. 

4. The effect of her evidence was that she regards Australia as her and X’s home.  It is her view that this country offers far superior opportunities for both her and her daughter.  In these circumstances, it is her evidence that she intends to return to Adelaide, once the proposed holiday is finished.  I do not doubt the veracity of this evidence. 

5. At present, Ms Nilssen is taking English classes.  In addition, she has a part-time (duties omitted) job.  At some stage next year, if she reaches a satisfactory standard of proficiency in English, she wishes to undertake a course of training to become a carer for the elderly.  In my view, these plans add weight to Ms Nilssen’s assertion that she is well settled in Australia with X. 

6. The respective backgrounds of Mr Raycliff and Ms Nilssen are very different.  These differences have contributed to many of the difficulties arising in the case.  For all sorts of reasons, Mr Raycliff does not trust Ms Nilssen and believes she is capable of bending the truth, when it suits her.

7. Ms Nilssen was born in 1981, in (country omitted).  Mr Raycliff was born, in 1951, in (country omitted).  He moved to Australia in 1969.  Mr Raycliff speaks English fluently, Ms Nilssen does not.

8. The parties met in (country omitted) in 2002.  They subsequently married in (country omitted), in (omitted) of 2003.  The father returned to Australia but returned to visit (country omitted) regularly, whilst he made application to the Australian authorities for a spousal visa for Ms Nilssen.  Ms Nilssen immigrated to Australia in 2007, shortly before X’s birth.  She had never previously been outside of (country omitted). 

9. The mother grew up in a rural setting in (country omitted), in the (omitted) area, where her extended family continued to live.  She left school at aged ten, at which stage she began to work on the land.  The implication of her evidence, regarding her early life, is that it was one of significant deprivation. 

10. The father gave the mother’s family the sum of $4,000.00 to assist them building a toilet and bathroom for their house.  The implication of the mother’s evidence, in this regard, is that the marriage between the parties was, at least in part, motivated by financial consideration.  There is a thirty year age gap between them.

11. The father was born in (country omitted), but migrated to this country, with his family, when he was eighteen years of age.  He completed a (omitted) apprenticeship, as a young man.  He continues to work as a mechanic but also farms on his land at (omitted), in the (omitted), where he keeps (omitted).

12. When the mother arrived in Australia, she lived with Mr Raycliff at his farm.  In 2008, she began casual work on a (omitted) farm in the area.  She has also (duties omitted) in the area.  One of the persons for whom she continues to clean is Ms F, who gave evidence in these proceedings on Ms Nilssen’s behalf. 

13. As has previously been indicated, it is Ms Nilssen’s position that Mr Raycliff behaved in a coercive and controlling manner towards her, during the course of their marriage.  It has been her position that this behaviour constitutes family violence, as statutorily defined by the applicable provisions of the Family Law Act.  In addition, Ms Nilssen has alleged that Mr Raycliff has attempted to undermine X’s close and loving relationship with her.

14. It was because of what Ms Nilssen asserts was Mr Raycliff’s controlling and threatening behaviour that she determined to leave the former family home, with X, clandestinely and move to the security of a women’s refuge.  Mr Raycliff did not know where X was for a reasonably lengthy period of time.  The emotional trauma arising, for Mr Raycliff, from this chain of events, continues to reverberate to this date and has added to the suspicion the father has for the mother, particularly in the context of overseas travel.

15. Mr Raycliff has consistently and strenuously denied the allegations of violence made against him.  However, Dr A, the court appointed expert, did not dismiss Ms Nilssen’s concerns.  She viewed X as being “a child of conflict”.  As such, Dr A did not dismiss the possibility that Mr Raycliff might want to attempt to align X to himself or that the child had been previously exposed to family violence.

16. It was one of Dr A’s recommendations that Mr Raycliff undergo a process of one-on-one counselling directed towards assisting him to understand the implications, for a child of X’s age, of being exposed to family violence. 

17. As Mr Raycliff has consistently denied that he has behaved in a violent manner towards Ms Nilssen or exposed X, in any way, to such behaviour, he has resolutely refused to undergo such a course of treatment and continues to do so.  This has been a factor leading to the delay in the finalisation of the case. 

18. In an earlier judgment, delivered in respect of an interim application to extend Mr Raycliff’s time with X, to include overnight time, I wrote as follows:

    “The father may well have valid reasons for resisting Dr A’s recommendation that he undergo a particular course of therapy directed to family violence.  From his perspective, I can well understand that his adoption of the recommendation may be perceived by him as an admission of fault, where no fault exists. 

    During the course of counsel’s submissions, I indicated that my impression of Mr Raycliff was that he was a proud person.  I do not mean this in any pejorative sense.  However, given his character, it may be the case that it is difficult for Mr Raycliff to undergo a course, which he considers to be both unnecessary and insulting.”

19. After seeing Mr Raycliff, in the witness box, my initial impression of him, as a proud and determined person remains undiminished.  Mr Raycliff is a person who sees things in dogmatic or black and white terms.  He can see nothing of a positive nature in (country omitted) for X and regards it as a backward and somewhat primitive society. 

20. I do not however doubt the genuineness of his opposition to X travelling to (country omitted).  I do not consider that he is opposing the trip merely because he can.  His genuine preference would be for the court to err on the side of caution and defer any travel, for X, for at least five or six years. 

21. In this context, Mr Raycliff finds it difficult to empathise with Ms Nilssen’s understandable desire to spend time with her family in the environment where she grew up.  My impression is that he is dismissive of Ms Nilssen’s view that X will benefit from spending time in (country omitted) and through meeting members of her maternal family. 

22. Rather, Mr Raycliff is more focussed on potential dangers arising for X from spending time in a rural area of a third world country.  It is difficult for me to appraise these potential dangers accurately.  There is a risk of medical emergency and accident in any kind of travel, including to modern and developed countries.  The risks to which Mr Raycliff has alluded include the following:

    ·The village in which Ms Nilssen’s family live has only a rudimentary medical clinic.  Hospital and emergency facilities exist only in the provincial capital, which is two hours journey away.

    ·There are many motor vehicle accidents in rural (country omitted).  These accidents arise because the most frequent mode of transport is on motorcycles and helmets are not regularly worn.  The roads are poor and children travel on motorcycles between the driver and other passengers.

    ·Mr Raycliff is concerned that X may be emotionally traumatised by exposure to incidents of everyday life, arising in (country omitted), which would be unacceptable in Australia.  These include the practice of cock fighting and the drowning and eating of dogs.

23. I appreciate that Mr Raycliff has visited (country omitted) on many occasions, most recently in 2009, when he accompanied the mother and X there on a holiday.  Accordingly, he has a personal knowledge of conditions in (country omitted), particularly in respect of the locale where Ms Nilssen wishes to visit and, as such, his opinion regarding overall safety in the country cannot be easily dismissed, based as it is on personal and direct experience.  It cannot be said that Mr Raycliff passes comment on (country omitted) from a position of ignorance. 

24. I accept that (country omitted), particularly rural (country omitted), cannot be regarded as being as objectively safe and secure as Australia.  It is a developing country with a large population.  Its hospital and infrastructure facilities, particularly in terms of roads and hospitals, are not as advanced as in this country. 

25. The Australian Government, through the Department of Foreign Affairs and Trade, advises Australian citizens intent on travelling to (country omitted), “to exercise normal safety precautions” whilst in (country omitted).  It cautions visitors about the prevalence of traffic accidents in (country omitted), describing driving standards and vehicle and road maintenance as being “generally poor”. 

26. The Department of Foreign Affairs and Trade Traveller Advice Service: recommends visitors to (country omitted) take out comprehensive travel insurance.  It also notes that the standard of medical facilities and care, in (country omitted), varies from region to region.  Notwithstanding these provisos, Australian citizens, considering travel to (country omitted), are not advised by the Australian Government to either reconsider their travel or not to travel at all. 

1. In answer to a question from me, Ms Nilssen indicated that she was intending to obtain travel insurance for herself and X in the event that her proposed trip to (country omitted) was approved.  In addition, she indicated that she proposed to spend some brief time, in (country omitted), with X, visiting the sights there. 

2. Her extended family, in (country omitted), all live within a few kilometres of her parents’ home village.  As such, apart from the travel between her parents’ home and (country omitted), a journey of around six hours, she does not envisage any extensive travelling, whilst she and X are in (country omitted). 

3. Notwithstanding Mr Raycliff’s concerns about (country omitted), the fact remains that, in 2009, he was prepared to allow X to visit (country omitted), albeit subject to his direct and overall supervision.  This indicates that, at that earlier stage, his concerns were not of such moment to dissuade him from embarking on travel to (country omitted).

4. In this context, I am concerned that he has lost the facility to trust Ms Nilssen because of the difficult litigation arising between them.  In addition I consider that he has lost sight of the fact that in the past he was of the view that Ms Nilssen would take all necessary precautions to ensure that X remained safe.  Presumably, he had some level of trust previously in Ms Nilssen.

5. Ms Nilssen did not strike me as an irresponsible person or one who would willingly expose X to any unacceptable risk of coming to harm.  To the contrary, Ms Nilssen seemed to me to be a sensible and prudent person.  This was also Dr A’s view.  She had no concerns about the mother’s understanding of what is important in parenting a child of X’s age.

6. Dr A assessed X to be a child who loved both her father and her mother.  As such, she assessed the child to have a meaningful relationship with both her mother and her father.  However, Dr A also assessed the level of conflict and mistrust, between the parties, as being at upper end of the range.  Undoubtedly, the proceedings in question have been protracted, particularly because of the dispute between Mr Raycliff and Ms Nilssen as to the nature of the relationship between them. 

7. Mr Raycliff has described Ms Nilssen as a deceitful and dishonest person, who has lied about him to the court in her affidavit material and to Dr A in the family report writing process.  In this context, he remains fearful that Ms Nilssen will dishonour any promise, which she makes, to return X to Australia.  His fears in this regard are heightened by what he would categorise as Ms Nilssen unreasonably concealing X and herself in the women’s shelter, in the period following the parties separation. 

8. I suspect that the traumatic circumstances surrounding the parties’ separation continue to reverberate emotionally for Mr Raycliff and to colour his attitude towards Ms Nilssen.  In these circumstances, I can understand why, at a deep visceral level, Mr Raycliff fears the prospect of X travelling to (country omitted).  To adopt his own terminology “all the money in the world will not compensate me if my daughter does not return from (country omitted).”

9. I must make some assessment of the risk of non-return of the child, in objective terms.  Ms Nilssen is not an Australian citizen.  However, she holds permanent residency in this country.  I accept her evidence that she has not obtained citizenship because she has not been able to access some personal documents, which she left at the former matrimonial home, when the parties separated.  I also accept her evidence that she wishes to become an Australian citizen, as soon as she is able to do so. 

10. It was Dr A’s assessment that Ms Nilssen was supportive of X having a proper level of relationship with her father.  As indicated earlier, Dr A considered that X had a close level of relationship with Mr Raycliff. 

11. The mother has contributed to this state of affairs.  In her evidence to the court, Ms Nilssen stated that X loves her father and she has no wish to cut off the relationship between the two.  I did not think that she was lying about this aspect of the case. 

12. Ms Nilssen is not in a strong financial position.  Her major source of income is Centrelink payments.  She is a modest part-time wage earner, who has no skills.  She lives in rented accommodation.  She has saved around $5,000.00, which she intends to utilise to pay her and X’s return airfares between Australia and (country omitted). 

13. Accordingly, I accept that Ms Nilssen has few material or financial ties to Australia.  However, I do not dismiss her evidence that she considers X will be materially better off, in the long run, if she grows up in Australia rather than (country omitted) and for this reason, she will return the child to Australia so that she can continue her primary school education. 

14. In this context, the evidence of Ms F is central.  She met Ms Nilssen when she engaged her to clean her home.  The two women have become close friends.  Ms F is employed as an (omitted).  She is aged in her early sixties.  As such, she must closely consider her financial future. 

15. Ms F describes the mother as being a person of the highest integrity.  As such, Ms F is convinced that Ms Nilssen will honour any promise, which she makes to the court to return X to Australia.  As a consequence of her confidence in Ms Nilssen, Ms F is prepared to provide a security deposit of $25,000.00 from her savings. 

16. I accept that although this sum is not the entirety of Ms F’s worth, it represents a very significant sum of money for her.  However, Ms F is prepared to pledge the sum without any apparent hesitation. 

17. It is Ms F’s evidence that Ms Nilssen has been wanting to visit her family for some years and is deeply missing them.  In these circumstances, I have no reason to disregard the bona fides of Ms Nilssen’s proposed trip to (country omitted). 

18. As previously indicated, the mother gave evidence in (country omitted).  She further deposed that she and X converse together, at home, in a mixture of (country omitted) and English.  X has recently started primary school.  She speaks English at school and to her father.  Accordingly, it would seem to be the case that she has some facility to be bilingual. 

19. Although Ms Nilssen has not explicitly deposed as such, it seems to be part of the underpinning of her case that X will benefit from spending time in (country omitted) and being exposed to the culture of the country and region within it from which her mother derives.  Given that X is bilingual to some degree, I accept that this is likely to be the case.

20. To his credit, Mr Raycliff accepted that X was likely to enjoy attending her aunt’s wedding, in (country omitted), and playing some special role in the ceremony.  However, he was not otherwise persuaded as to any other advantages arising for X from visiting (country omitted). 

The legal principles applicable

1. Part VII is the part of the Family Law Act 1975 which deals with the law relating to arrangements for the care of children.  The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].

2. Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child. 

3. Accordingly the issue of whether X should or should not travel to (country omitted) (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].

4. The best interests of any child concerned as the paramount or most important consideration [section 60CA].

5. At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:

   “(a)  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; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

6. The principles, which underpin these objects, are set out in s.60B(2) and are as follows:

   “(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

7. In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act.  There are two categories of matter I must consider – primary considerations and additional considerations. 

8. There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence. 

9. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned. 

10. However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).”  This, of course, is the consideration dealing with abuse, neglect and family violence.  These considerations are now to be given priority.

11. The additional considerations are more numerous [section 60CC(3)].  Again, their application must depend on the particular circumstances of the case concerned.  Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore. 

12. Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made by the court. 

13. The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. 

14. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.

15. In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. 

16. Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind.  Such considerations raise the following practical issues and criteria:

    ·the length of the proposed stay out of the jurisdiction;

    ·the bona fides of the application;

    ·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;

    ·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;

    ·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[3]

    [3]  See Kuebler & Kuebler (1978) FLC 90-434 at 72,205

17. Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary.  Obviously, such a possibility has potentially very serious ramifications for the child concerned.  It may result in the severance of his or her relationship with one aspect of his or her family. 

18. In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia.  These factors include the following:

    ·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;

    ·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;

    ·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.

19. In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia.  In determining whether some form of security should be imposed, the court is directed to consider the following factors:

    ·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary. 

    ·the degree of risk that the departing parent will not return to Australia.

    ·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.

    ·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[4]

    [4]  See Line & Line (1997) FLC 92-729 at 83,846

20. It is Mr Raycliff’s case that there is a real risk of X not being returned to Australia, at the end of the proposed travel.  Ms Nilssen remains a (country omitted) citizen and travels on a (country omitted) passport.  She has strong ties in (country omitted) and, in his view, would be readily able to re-establish herself in that country. 

21. In addition, (country omitted) is not a signatory to the Hague Convention.  Its legal system is very different to that which applies in Australia.  In all these circumstances, he asserts that it would be practically impossible, for him, to secure the return of X to Australia, if Ms Nilssen disobeyed an order of the court, directing her to return X to Australia. 

22. Mr Raycliff also argues that the proposed trip to (country omitted) represents a serious potential threat to X’s welfare.  He fears that there is a significant danger that X will suffer a serious accident in (country omitted) or be exposed to some upsetting incident in (country omitted), which will cause her to become fearful or upset. 

23. Accordingly, Mr Raycliff’s case seems to be posited on the application each of the major primary considerations.  Firstly, that the trip represents a threat to X’s psychological and physical wellbeing.  Secondly, because of the possibility of non-return to Australia, there is a risk that X will permanently lose the benefit of having a meaningful level of relationship with him.

24. All assessments of risk require a degree of prognostication about the future, which of course can never be known in advance.  As Cronin J said in Gin & Hing:[5]

    “Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”

    [5]  Gin & Hing [2010] FamCA 617

25. In this particular case, Mr Raycliff identifies two species of risk.  Firstly there is the risk of the mother and child not returning to this country, as promised.  Secondly, there is the risk of X coming to some emotional and psychological harm, whilst in (country omitted), as a consequence of some act of negligent parenting on Ms Nilssen’s part or because some accident occurs.

26. The responsibility of the court is to attempt to quantify the degree of risk arising from both such scenarios in an objective and rationale manner and determine whether any risk entailed is one which it is not reasonable for the court to accept in all the circumstances prevailing.

27. There may be “a” risk or “some” risk of non-return because such an eventuality can never be definitively ruled out.  In addition, accidents can occur in all countries, including ones which are fully developed and extensively regulated.  The question in cases of this nature is the degree or quantification of the risk concerned.

28. At the same time as it conducts its assessment of these risks, the court must also assess any potential benefits arising for X from the proposed travel, according to any applicable criteria arising under section 60CC.

29. In a case involving an application for overseas travel, the following considerations are likely to be germane:

    ·the nature of the relationships the child has with each parent and any other person (including a grandparent or other relative) [section 60CC(3)(b)];

    ·the willingness of Ms Nilssen to foster X’s relationship with her father, whilst the child is overseas [section 60CC (3) (c)];

    ·the capacity of each parent and any other person, including a grandparent, to provide for the children’s needs, including their emotional and intellectual needs [section 60CC(3)(f)];

    ·the particular background of any child concerned, which is taken to include the lifestyle, culture and traditions and any other relevant characteristic of both the child and his or her parents [section 60CC (3) (g)]. 

30. It is a strong theme of the mother’s case that it will be beneficial for X to have the opportunity to interact with members of her maternal family, particularly her grandparents, in the cultural milieu applicable to them and from which X herself, in part, derives, namely (country omitted). 

31. In addition, it is implicit in Ms Nilssen’s case that X will benefit from the experience of overseas travel itself.  If the trip proceeds, X will be exposed, in depth, to the language, cuisine and culture of (country omitted).

32. Ms Nilssen obviously presents as a (country omitted) person.  Her mother tongue is (country omitted) and she converses in this language, at least in part, with X.  In these circumstances, X herself is likely to identify (and to be identified by others within the Australian cultural mainstream) as being (country omitted). 

1. In these circumstances, it is likely to be beneficial to X, if she is exposed to positive role models, who share her (country omitted) background and appearance.  This is likely to assist her to maintain a positive attitude towards her own cultural background.  It is implicit from Ms Nilssen’s case that a trip to (country omitted) will provide X with positive experiences of (country omitted) and will so assist her to develop a positive view of her own identity.

2. The guiding hand of the legislature can be seen in section 60B, where the objects and principles of Part VII are set out. These principles (set out in full above) emphasise the entitlement of children to spend time with their relatives, particularly grandparents and speak of their right to enjoy their cultural background with other relatives, who share that culture with them.

3. Cultural background is important to children.  It provides them with a sense of identity.  Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context.  In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time. 

4. The Australian Passports Act 2005 provides the legislative framework for the issue of passports to Australian citizens.  Pursuant to section 11(1) the relevant minister is prohibited from issuing a passport for a child unless either each person who has parental responsibility for the child consents to the child travelling internationally; or an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.[6]

   [6]  See Australian Passports Act 2005 at section 11(1) (a) & (b)

5. Up to this stage, the parties continue to share parental responsibility for X.  Accordingly, there is an obvious dispute them as to how this aspect of parental responsibility, in respect of X, is to be exercised.  The dispute can only be resolved according to the applicable provisions of the Family Law Act.

Conclusions

1. (country omitted) is not a signatory to the Hague Convention.  Accordingly, in my view, it is therefore incumbent upon the court to examine closely the mother’s circumstances, particularly the strength of her ties to this country and the bona fides of the trip in question. 

2. Ms Nilssen has lived in Australia since 2007.  It is not a lengthy period of time by any means.  As such, it cannot be said that Ms Nilssen is clearly well settled in Australia.  It also seems to be the case that many aspects of her life, in Australia, have been difficult.  She is not in a strong financial position and has been engaged in a lengthy and bitter dispute, with her former husband, for the past few years.

3. In addition, Ms Nilssen faces many social disadvantages in Australia.  She is a migrant with a limited grasp of English.  She is likely to be, at best, a modest income earner in future, who will find it difficult to purchase residential accommodation for herself in this country.  Accordingly, Ms Nilssen’s life is one of challenge.  Significantly, in confronting the various challenges in her life, Ms Nilssen has no immediate source of familial support available to her in Australia.

4. I acknowledge that, in generic terms, these are significant factors, which may lead Ms Nilssen to conclude that life would be far easier for her and X in (country omitted).  Yet, like Ms F, I am confident that Ms Nilssen will honour her promise to return, with X, to Australia at the conclusion of her propose travel to (country omitted). 

5. I accept Ms Nilssen’s evidence that, although life is difficult for her in Australia, it is her view that, in the long run, it provides by far the best environment for X to grow up in, particularly in terms of education, health and other material aspects of her life. 

6. My impression of Ms Nilssen is that she is a dedicated parent, who is devoted to the best interests of X.  As such Ms Nilssen has a sound insight into the responsibilities of being a parent and wants her daughter to have every possible material advantage in life.  In these circumstances, she is unlikely to uproot X from the environment in which she has grown up in up to this stage of her life. 

7. In addition, I accept Ms Nilssen’s evidence that she is supportive of X’s relationship with her father.  Although she has been resistant to X spending overnight periods of time, with Mr Raycliff, it is my finding that Ms Nilssen has otherwise supported X spending regular periods of time with her father.  

8. Mr Raycliff has not suggested that Ms Nilssen has ever disobeyed or otherwise frustrated the orders of the court in respect of him spending time with X.  In my view, given her own evidence and that of Dr A, Ms Nilssen had valid reasons for resisting an order for overnight time between X and her father.

9. Ms F was a credible and impressive witness.  She has absolutely no doubt that Ms Nilssen will honour her promise to return X to Australia.  Given the strength of her conviction, Ms F has pledged the significant sum of $25,000.00 to assist Ms Nilssen in achieving her aim of travelling with X to (country omitted). 

10. In my view, the sum of money is a significant one.  I do not consider that Ms Nilssen so disingenuous or Ms F so gullible that the former could easily trick the latter into putting up such a large sum, knowing full well that she (Ms Nilssen) had no intention of returning to Australia with X.  In my assessment, one which is shared by Ms F, the mother is not a calculating or selfish person, capable of such a significant level of deception.

11. Ms Nilssen’s reasons for wanting to travel to (country omitted) are simple but readily understandable in human terms.  She misses her family, whom she has not seen for over four years.  She wants her daughter to meet her grandparents.  In these circumstances, I do not doubt the bona fides of Ms Nilssen’s proposed travel plans. 

12. I accept that X has a close and loving relationship with her father.  In this sense, the relationship between the two is meaningful.  However, the relationship between the two has much potential for advancement.  This is the intent of the recently made orders, which will lead to a regime of overnight time, in a period of about six months. 

13. I accept that a break of around four weeks will, to some degree, impede this process of advancement.  However, in my view, this will not be a significant problem in the longer term, particularly when consideration is given to other benefits, which are likely to derive for X, from the trip in question. 

14. Four weeks is not a period of sufficient length to accord permanent damage to the paternal relationship between Mr Raycliff and X, which on Dr A’s assessment is inherently secure.  X will not forget her father over such a comparatively short period of time, particularly if the two are able to touch base with one another regularly through periods of telephone communication.  In addition, it is open to the court to grant periods of make-up time to remedy any limited deficits arising. 

15. Mr Raycliff is concerned that telephone communication systems in (country omitted) are subject to breakdown and he may find it difficult to speak with X regularly.  I do not dismiss these concerns but do not think they are sufficient to justify the lengthy deferral of Ms Nilssen’s proposed trip. 

16. I accept that (country omitted) is a developing country.  As such, its infrastructure, particularly in terms of its roads and hospital system is far less sophisticated than in Australia.  Accordingly, risks must arise for X from travelling to (country omitted).  The essential task of the court is to assess the quantum of the risk arising, in objective terms, and put in place measure commensurate with the degree of risk so quantified. 

17. Ms Nilssen knows (country omitted) well.  Accordingly, she is likely to know where perils are likely to arise for X and react accordingly.  In my assessment, she is a diligent parent, who is unlikely wantonly to expose X to any foreseeable possibility of her coming to harm.  In my view, Ms Nilssen’s diligence, as a parent, is likely to provide the greatest safeguard for X. 

18. In addition, Ms Nilssen is willing to follow the advice of the Australian Government and obtain medical insurance for herself and X.  This will ensure that the child has access to the best available medical care in (country omitted) and enable Ms Nilssen to liaise with medical authorities, in Australia, in the event that any illness or accident unfortunately befalls X. 

19. I will make orders requiring Ms Nilssen to obtain such insurance and will direct that she provides documentary proof of such insurance to Mr Raycliff. At the end of the day, many Australian citizens choose to travel to (country omitted) and the Australia Government does not actively attempt to dissuade them from such travel.  Whilst recognising the dangers of travelling to (country omitted), in my assessment, Ms Nilssen is a prudent person, who will be vigilant so far as X is concerned. 

20. The applicable legislation speaks of the right a child has to interact regularly with significant relatives, specifically identifying grandparents in this regard.  Grandparents have the potential to be very important to children.

21. Grandparents provide children with knowledge and information about their wider family and forebears.  This is particularly important in a cultural context.  X is a child with a (country omitted) background.  As such, I consider that she is likely to benefit from interacting with her grandparents in the cultural milieu from which both she and her mother directly spring. 

22. X has an extensive knowledge of (country omitted).  In Australia, her cultural context is strongly influenced by (country omitted) themes.  As such, in my view, it will assist her, in gain a sense of personal identity, if she is able to spend some time in (country omitted) and interact with her wider maternal family. 

23. In my view, it is likely to be important to X’s sense of identity that she gains a sense of where they fit in, in her wider family.  In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[7] 

    [7]  See Bright v Bright (1995) FLC 92-570 at 81,658

24. In my view, the potential benefits of the trip proposed by Ms Nilssen markedly outweigh any negative factors.  The trip proposed is not a long one.  The risk that Ms Nilssen will not return the child to Australia is slight, particularly given the extent of the surety proposed by Ms F. 

25. The risks of X coming to some form of harm, whilst in (country omitted), are militated by the provision of insurance.  The relationship between father and child can be maintained through some telephone communication and periods of make-up time before and after the trip in question.

26. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       8 November 2013