Saffron and Gaynor

[2012] FamCA 489

FAMILY COURT OF AUSTRALIA

SAFFRON & GAYNOR [2012] FamCA 489

FAMILY LAW – CHILDREN – Interim – where both parties sought an interim order for international relocation to places both of which were the subject to travel advisories by DFAT – where the mother was the primary carer of a 5 year old daughter – where both parties had international careers – where the mother was allowed to relocate to a non Hague country on an interim basis – where the mother was ordered to provide security

Family Law Act 1975 (Cth)

APPLICANT: Mr Saffron

RESPONDENT: Ms Gaynor

FILE NUMBER: SYC 3129 of 2012

DATE DELIVERED: 26 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 25 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Edwards Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Fox & Staniland Lawyers

Orders

PENDING FURTHER ORDER:

1. The child M born … April 2007 (“the child”) live with the mother.

2. The child’s name be removed from the Australian Federal Police Airport Watch List.

3. The child be permitted to depart and live outside of the Commonwealth of Australia with the mother.

4. The mother be permitted to enrol the child in B School of City C, Pakistan.

5. Upon the father giving 14 days notice, the child may spend time with the father on any weekend the father is at the place at which the child lives with the mother.

6. The child is to spend time with the father:

   6.1.From 29 June 2012 until 13 July 2012;

   6.2.From 18 August 2012 to 25 August 2012;

   6.3.From 26 October 2012 to 30 October 2012;

   6.4.From 26 December 2012 until 4 January 2013;

   6.5.From 29 March 2013 until 6 April 2013.

   and such other time as the parties agree or the court further orders.

7. The father shall have the option of spending time with the child as referred to in order 6, in City C, Pakistan or such other destination that he nominates, and in the event the father wishes to take the child away from where the child is living with the mother, the following conditions apply:

   7.1.The father shall collect the child from the local international airport in City C, Pakistan or the place where the child is living with the mother from time to time on the commencement date as set out in Order 6, at such time that he nominates in writing at least 14 days in advance of his expected arrival date provided that this condition not apply to order 6.1;

   7.2.The father shall provide the mother with a copy of his and the child’s itinerary 14 days in advance of his expected arrival date (in relation to order 6.1, this be done as soon as is practicable). The father shall collect the child and she shall remain in his care until the date specified in Order 6, when the mother shall attend to collect the child from the father at such airport that they agree or failing agreement the airport closest to where the child is with the father.

   7.3.The father shall pay the cost of the child’s flights to collect the child from the mother and the mother shall pay the costs of collecting the child from the father.

   7.4.If either parent is unable to personally collect the child at a changeover date, the parties shall agree on other suitable person who may travel with the child on the flights.

   7.5.The child’s passports and luggage shall be provided to the other parent at the airport when the changeover takes place, together with any items the child will need when in the care of the other parent, for example medication, clothing, or school work.

   7.6.If the child is required to take any vaccinations prior to the travel to a particular country the mother shall ensure the child has the vaccination prior to her departure from the child’s country of residence.

   7.7.If the child’s passport is lost, stolen or about to expire, both parties shall sign the relevant forms and equally share the cost for a new passport to be issued.

8. The mother is to return with the child to Australia for the final hearing.

9. The mother is to return the child to Australia or deliver the child to the father at any other location if ordered to do so by a court exercising jurisdiction under the Family Law Act.

10. In order to secure the father’s costs associated with him seeking to have the mother comply with the preceding order, in circumstances where she has failed to do so, the mother is to provide the father with a charge over all her interests in real estate in Australia.  The father shall be entitled to lodge a caveat over such real estate interests, pursuant to the said charge.

11. Both the parents shall activate Skype and permit the child to speak to the other parent on a webcam as often as the child likes, and at least once a week as agreed between the parties and all special occasions being the child’s birthday, Father’s Day, Mother’s Day, Easter and each parent’s birthday.

12. Both parents shall be listed as enrolling parents and emergency contacts at the child’s school.

13. The child’s school and other care providers are authorised to provide all information and documents about the child to both parents, including but not limited to the child’s progress, newsletters, reports, photographs and details of any school activities.

14. Both parents be at liberty to discuss matters relating to the child with the child’s school, teachers, principal and other care providers.

15. Either parent be at liberty to attend any significant school events and any significant extra-curricular or sporting events that the child may be involved in.

16. Each parent keep the other informed of their current residential address, mobile and landline numbers and email address and advise the parent of any change thereto within twenty four (24) hours of such change.

17. The father’s interim application filed 30 May 2012 be dismissed.

18. 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 by this Court under the pseudonym Saffron & Gaynor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3129 of 2012

Mr Saffron

Applicant

And

Ms Gaynor

Respondent

REASONS FOR JUDGMENT

1. This case is about with whom and where the child M (“the child”; aged 5), who was born in April 2007, will live. This case has an unusual feature. Both parties seek, as their primary interim application, to each be able to take the child to live with them outside Australia.

2. The parties in the matter married in 2006 and were married for five years. The parties were separated under one roof from approximately June 2011, and the father moved into separate accommodation in August 2011.

3. The father is employed by an Australian Government department. The mother works for international organisations.

4. Since the child’s birth, the parties have spent very limited time in Australia. They have primarily been based in Cairo, and then City D, Kenya, although the child has accompanied the mother to many other countries.

5. On 31 March 2012, the mother returned to Australia with the child. She has now agreed to take up employment in City C, Pakistan. She proposes to take the child to City C, Pakistan with her.

6. The father continues to be based in City D, Kenya. The father’s primary proposal is that the child returns with him to Kenya. In the alternative, he proposes that the mother be restrained from leaving Australia with the child and he would attempt to find a posting in Australia.

TRAVEL ADVISORY RISK

1. The father’s opposition to the mother’s proposal is primarily based on the risk to the child’s safety. He annexes to his affidavit the current Department of Foreign Affairs and Trade (“DFAT”) travel advisory about Pakistan. The DFAT travel advisory for Pakistan overall is at the third highest rating; “reconsider your need to travel”. DFAT further advise staff at the High Commission to “minimise their use of restaurants and international hotels, to minimise visits to shopping areas and avoid walking in [City C, Pakistan].”

2. Counsel for the father submitted that the risk is particularly high for Westerners who are working in the mother’s field, as well as for children who are attending school outside of a secure compound.

3. The father challenged the evidence of Ms P who deposed that there have been no attacks on City C, Pakistan in the last two years. The DFAT travel advisory shows that there have been attacks as recently as 13 June 2011, in a commercial area of City C, Pakistan.

4. Counsel for the mother submitted that the advisory risk for City C is at the same level as the advisory risk of City D, Kenya. The mother annexes to her affidavit information about recent security incidents in Kenya; including security advice from the United States of America Embassy, and from DFAT. It says that as recently as 28 May 2012, “an explosion occurred in a shopping centre in the Central Business District of [City D, Kenya], injuring around 30 people.” DFAT advises Australians to “exercise a high degree of caution overall in Kenya at this time due to the high risk of terrorist attack, civil unrest and high crime levels in the country.

5. In the context of the incomplete and untested evidence which I have, I find, comparatively, the two countries pose a similar level of risk.

6. The important observation to make following that conclusion is that whilst the parties were together they voluntarily took the child to City D, Kenya and she lived there with them.

THE MOTHER’S ABILITY TO ASSESS RISK

1. The mother has extensive experience in her field. She has worked in numerous other countries. She has continued this type of work after the child’s birth. The child has spent most of her life in countries other than Australia; accompanying her mother to several other countries. The mother has twenty years experience working in disaster-stricken or conflict affected locations.

2. The mother gives evidence that she accepted the posting in City C, Pakistan because it was “largely desk orientated…with minimal and selective travel in a safe, quiet city.” She deposes that she has researched reputable schools and ensured that accommodation is appropriate and security considerations are effectively managed.

3. I accept the mother is a person who is able to assess particular risks to her and the child in a particular location and what precautions need to be taken in regard to those risks. I find that the mother has taken the appropriate steps to gauge the level of safety in City C, Pakistan.

THE EXTENT TO WHICH THE MOTHER POSES A FLIGHT RISK

1. The father submitted that the mother is a flight risk. Pakistan is not a party to the Hague Convention.

2. However as counsel for the mother points out, the parties have substantial property in Australia. They agree they have net assets of over $1 million.

3. The mother has agreed to provide security for the child’s return to Australia.

THE MOTHER FAILING TO FACILITATE TIME WITH THE FATHER

1. Counsel for the father submitted that the mother had already “breached” an informal parenting agreement made between them and he has no confidence that the mother will facilitate any time with him.

2. He annexes two parenting agreements to his affidavit. The first is dated 9 August 2011, Annexure B to his affidavit. This agreement was clearly made anticipating a reconciliation of their relationship. For example, it provided that the father would attend “family meals” with the child and the mother, while the parties were having a “trial separation.”

3. However, the parties did not reconcile their relationship. The father deposes he “told [the mother] that [he] could not commit to reconciliation.” The mother then changed the conditions. I do not accept that the mother dishonoured any operative agreement.

4. The mother moved back to Australia in March 2012.

5. The father returned to Australia in April 2012, and remained here for 5 weeks. He requested time with the child and he says at paragraph 58 of his affidavit that he spent “2 weekends, 1 day mid-week and 2 afternoons with [the child].” Counsel for the father submitted that this breached the parenting agreement requiring the child to spend every weekend with her father.

6. However, that agreement, annexure G to the father’s affidavit is dated 7 May 2012. This agreement clearly post dates the time the father describes in paragraph 58.

7. I do not accept that the mother has breached any informal parenting arrangement. Indeed, as evidenced in paragraph 58, she facilitated such arrangements.

SECTION 60CC FACTORS

1. There is benefit to the the child having a meaningful relationship with both her parents.

2. The mother has raised some allegations which would amount to family violence, but there was no significant reliance placed upon those allegations in the context of this interim application. The primary issue of risk which was the focus during submissions was the locations which each party intended to have the child live. Although the child is at risk of harm residing in either country (due to the high levels of crime and civil unrest), I find that both parents are experienced enough to be able to assess those risks and take appropriate precautions. The other issue of risk raised by the mother related to the sudden change proposed by the father from her living with her primary carer.

3. The child is too young to have any significant weight placed on her views.

Relationship with each parent

1. The mother asserts that she has been, at times, the sole carer for the child, or the primary carer. This assertion does not seem to be contested by the father. The child lived the first year of her life almost exclusively with her mother and has been with her mother almost exclusively for the last year. The parties have often had paid nannies to help with the child.

2. The father’s employment requires him to travel extensively, away from his base in City D, Kenya.

Willingness to facilitate a relationship with the other parent

1. The mother has facilitated time between the father and the child. I have already said that I do not find she has breached any parenting plan.

Likely effect of change

1. As indicated above, the child has spent significant portions of her life, including the last year, almost exclusively in the care of her mother.

2. On the father’s proposal, she will move back to Kenya and she will not see her mother again until Christmas. I find it is likely that this would be contrary to The child’s best interests.

Practical difficulties

1. Both parties’ proposals pose practical difficulties as the parties intend on living in different continents.

CONCLUSION

1. I find it is in the child’s best interest to remain with her mother and consequently that it is not in her best interests in the short term, for the child to ordinarily live with the father in City D, Kenya.

2. The father’s alternate proposal is that the mother be effectively detained in Australia pending the hearing of the matter on a final basis. This would take away from the mother her ability to work in her field and earn income as she chose. The level of risks in this case are not such that it is in the child’s best interests to impose such an onerous condition on her primary carer.

3. The mother set out a proposal for the child to spend time with her father in the event that was the result. The father did not provide his proposal for spending time with the child if the child was with her mother in City C, Pakistan. I will make the orders for the child’s time with the father as proposed by the mother with the following changes:

   37.1.A period of notice of 14 days is sufficient;

   37.2.In the event the father is in City C, Pakistan or any other place that the mother is living with the child, and upon giving 14 days notice, he can spend the weekend with the child.

4. The mother has offered to provide security for the child’s return to Australia or delivery to the father at another location, if so ordered. I find it is appropriate for the mother to provide security given that Pakistan is not a party to the Hague Convention.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 June 2012.

Associate: 

Date:  26.6.2012