Salambo and Olenghi

[2019] FamCA 216

FAMILY COURT OF AUSTRALIA

SALAMBO &  OLENGHI [2019] FamCA 216

FAMILY LAW –  CHILDREN – Best interests – Where the mother seeks to travel internationally with the child for four to six weeks – Where the father opposes the travel and considers the mother may not return – Where the father seeks a security sum be placed with the court – Where the mother has strong ties to Australia and is in the final stages of obtaining Australian citizenship – Where the child is an Australian citizen – Whether the proposed travel is in the best interests of the child – Orders made permitting the mother to travel with the child.

Family Law Act 1975 (Cth) s 60CC

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

APPLICANT: Ms Salambo

RESPONDENT: Mr Olenghi

FILE NUMBER: ADC 2341 of 2010

DATE DELIVERED: 3 April 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Wabnitz

SOLICITOR FOR THE RESPONDENT: Daniel John Lawyers

Orders

1. That MS SALAMBO be permitted to travel with the child B born … 2007 (“the child”) from the Commonwealth of Australia to Country X and Country Y for the period between  … May 2019 to … June 2019.

1. That the mother provide to the father copies of the child’s itinerary and proof that a ticket has been obtained for the child both as to her departure from and return to the Commonwealth of Australia NOTING that service of the child’s itinerary will be deemed to have been effected by posting the documents to Mr Olenghi c/o Ms Z at BB Avenue, Suburb D.

1. That the name of the child B born … 2007 be removed from the Family Law Airport Watchlist.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salambo & Olenghi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms Salambo

Applicant

And

Mr Olenghi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Initiating Application filed 1 February 2019, Ms Salambo, (“the mother”), seeks orders that she be permitted to travel with B born in 2007 (“the child”) to Country X and Country Y for the period May 2019 to June 2019. To enable that to occur there would need to be a consideration of the final orders made on 23 November 2016 and that the child be removed from the Family Law Airport Watchlist.

2. The respondent father is Mr Olenghi (“the father”). There is significant history to this matter, and by way of background, I refer to the judgment delivered on 23 November 2016 following an extensive final hearing.

3. The orders are summarised as follows:-

   (1)That the mother have sole parental responsibility for the child;

   (2)That the child live with the mother;

   (3)That the mother advise the father within 14 days of decisions made by her in respect of major issues relating to the child’s education and medical treatment, and

   (4)That there be a graduated reintroduction of time between the child and father, initially commencing at a children’s contact service and then, following the completion of six supervised visits, a report is to be obtained, that being an observational report.

   (5)Thereafter, the child is to attend upon a psychologist, either Ms E or Ms F, for the purposes of preparing the child for unsupervised time with the father.

4. There were also concerns in respect of the child’s mental health, and orders were made that provided for the parties, but more likely the mother, to obtain a mental health care plan, and that thereafter, the child should attend upon an appropriate health professional in preparation for the father to spend time with her on a graduated and increasing basis.

5. The orders have not been complied with. That is not to suggest that there is blame either on the part of the mother or the father, but it is to reflect that there were difficulties in the initial supervised periods. There is some consensus that the child appeared reluctant to engage with the father, and it may be that, thereafter, he determined that at least for the moment, until he reassessed the position, it was not appropriate to press the child in terms of compliance.

6. What has happened is that since early 2017 the father has not seen the child and so the balance of the orders have either not been complied with, or at least are not likely to be easily attended to. The father is in Country CC and he remains there until at least June 2019. He is apparently studying. The mother seeks to travel overseas with the child and her application is supported by her Affidavit of 1 February 2019.

7. The mother was not been able to serve her application and affidavit on the father and the Court was reluctant to proceed without there being some reasonable attempt to bring the application to the father’s attention. On the last occasion orders were made that provided for substituted service, namely, that the initiating application, the mother’s affidavit and the notice of child abuse or risk that she had filed would be deemed to have been served on the father by delivering the documents to the home of the paternal grandmother at BB Avenue, Suburb D.

8. Reasons were given on the last occasion in support of that order. It is the position that in the final hearing there were certain findings made as to the relationship between the father and the paternal grandmother which prompted the Court to be satisfied that they are in contact and that documents forwarded to the paternal grandmother would more likely than not be brought to his attention. That occurred, and upon the adjourn date today, Mr Wabnitz appears indicating that his client has received the documents and he has instructions to oppose the application in its current form, but that he would not speak against an order being made that provided a security bond.

9. The father remains in Country CC. This matter has been before the Court for a number of months, certainly from the date it was filed on 1 February 2019, and I am satisfied that the matter needs to be attended to. The mother’s application is supported by her affidavit and that document satisfies me that the purpose of the proposed overseas travel in respect of the child is genuine, namely, to travel to Country X and Country Y for six weeks with a focus at the end of that nominated period to attend the mother’s sister-in-law’s wedding in Country Y. I am satisfied that the application is not a ruse.

10. Irrespective of that, I am still obliged to consider the competing proposals of the parties, namely, the mother’s proposal to travel with the child for the period as indicated and the father’s opposition. The mother’s application seeks a parenting order and I am obliged to have regard to the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”) in order to determine whether what is being proposed by the mother is in the child’s best interests. There are two obvious aspects to the proceedings. The first is the overseas travel itself, and the issue of risk, and the second is irrespective of whether there is or is not a risk, is the trip itself of benefit to the child?

11. If the trip is not of benefit to the child, then these proceedings are not child-focussed. The child is now 11 years of age and I accept what the mother says, namely that the child is keen for the overseas trip. I have no doubt that is the case. The affidavit of the mother did not provide much assistance in terms of the issues that I have to consider. I am satisfied that the purpose of travel or at least the place of travel are Hague Convention countries, and I am also cognisant and take judicial notice of the Convention in respect of the recovery of children from countries that are signatories to the Hague Convention.

12. I am aware of the recovery mechanisms, and I am satisfied that it is, in this case, more likely than not that the child would be attending Europe rather than a country to which is not a signatory. Of course, once a child leaves a jurisdiction, it is very difficult to ensure that a child is only taken to Hague Convention countries and not to other countries who are not signatories.

13. Because of the deficiencies in the affidavit, I required the mother to give evidence on oath. The evidence reveals that the mother is an Administrative Assistant for an organisation known as DD Organisation. She has been a full-time employee for three and a-half years and she considers her employment to be of a permanent nature. Her partner, Mr I, is a manager for a local company. She thinks that he has been an employee for about five years. I am satisfied that both the mother and her partner have full-time and stable employment in Adelaide.

14. I am satisfied that the purpose of the trip is genuine and whilst the mother now considers that there may need to be a change to the date upon which she departs with the child, there is no change to the date upon which they are to return to Australia. There is always a question of risk, but in this case, I am satisfied that the risk is minimal. The mother travels on a Country C passport, but I am satisfied, from her evidence, that she is in the final throes of an application for Australian citizenship, and she tells the Court she has done all that has been requested of her and that she now is awaiting the final confirmation that her application has been successful.

15. Her partner is also in a similar process, although I am not able to assess the extent to which his application is more or less likely to succeed, I am satisfied from the mother’s knowledge of the matter, that both she and her partner have taken steps to obtain Australian citizenship.

16. The child does not hold any overseas citizenship. She holds an Australian passport and is an Australian citizen. The mother has indicated that there are no steps that she is taking to secure a passport either as a result of the mother’s Country C citizenship or as a result of some connection that might enable a European or Country Y passport to be available to the child via her relationship with Mr I.

17. The risks in this case are minimal. Mr I is the registered proprietor of his home. The mother has no financial interest in that property and her name does not appear on the title. Whilst it may be reasonable to assume that Mr I and the mother would both have to decide to place his assets at significant risk if they did not decide to return to Australia, it is self-evident that I can make no order against Mr I, nor do I intend to do so.

18. It seems to me that I am in a position to be able to assess risk, and, in the circumstances of this case, I can see no reason why there should be any attendant risk to the proposal of the mother, namely, that she be able to remove the child from the Commonwealth of Australia for the purposes of the proposed trip. There is nothing that suggests the mother is likely to be a flight risk. There is nothing to suggest that the mother has connection that is superior to that which she appears to have developed in Australia, and, more relevantly, the child is now 11 years of age.

19. The proceedings concluded in 2016. The father has had little or no time with the child for now a number of years, so it is not a matter of there being any suggestion that the mother has intended to travel in order thwart some future plan of the father, but, rather, it is simply the mother seeking to undertake those aspects of life which she considers are likely to enhance her experience but, relevantly, the child. There is no suggestion that a trip to Europe, in particular to Country X and Country Y, would not be in the interests of the child.

20. There are cultural connections that Mr I has with Country Y. There are cultural connections that the wife has, and so it is likely to be a culturally enriching experience for the child, but even were it to be no more than simply a holiday, it is unlikely to be harmful to the child that she would experience four to six weeks in Europe. The difficulty relates to the period of travel, which would fall within the second school term entirely. The first term school holidays conclude on 28 April 2019, and the next school holidays commence on 6 July 2019.

21. The entirety of the six-week period or such lesser period, will fall squarely within the second school term and the child will miss between four and six weeks of school. That is a serious matter for a child aged 11. The application is to be determined according to the best interests of the child. If I determine that there is not a risk, I am not thereafter absolved from any further consideration. Section 60CC of the Act requires me to consider the primary and the additional considerations that are relevant to this case.

22. They are obviously limited, simply because final orders have been made, and this is an application of narrow compass. There has been focus in the mother’s oral evidence on the recognition that there could be adverse issues arising in respect of the child’s education. The mother tells the Court that the child generally performs well, and her 2018 school report suggests that she is an A and B-grade student. The mother does not indicate there are any aspects or deficiencies in her education and that she does not appear to be a child who struggles.

23. The mother has satisfied me that she has spoken to the schoolteacher or the child’s teacher, and that whilst not desirable, nor could it ever be desirable, that there are at least some measures that can be put in place which will reduce and ameliorate the consequences of the child not attending second term. The Court has to balance the potential that there will be some adverse effect on the child’s educational development, as opposed to the significant benefit that the child is likely to get from the experience of an overseas holiday to Country X and Country Y where there is likely to be cultural connection and diversity.

24. I return to the final orders made on 23 November 2016. It is noted that the order provided for the mother to have sole parental responsibility. The Court considered after a lengthy hearing, that the mother was able to make appropriate and child-focussed decisions for the child in all aspects of her life, subject to the condition that in respect of education and medical treatment, the mother was to advise the father.

25. It is a matter for the mother to make these decisions where the Court considers she is a responsible parent. I have not been presented with any evidence that would suggest the extent, if any, to which the child’s education, achievement and progression may be adversely affected by what is being proposed. I rely upon the good sense in judgment of the mother in circumstances where the Court was satisfied to invest that in her by order.

26. I am mindful of the matters raised on behalf of the father, and bringing to account the decisions of Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 92-729, and acknowledge the factors that the Full Court considered were relevant as to how the Court should determine an application of the sort. I am satisfied that there is little or no risk that this child will not return to the jurisdiction, and that, in any event, to the extent that there is some detriment to the child in terms of her not being able to attend school for a period of between four and six weeks, I consider that to be offset by the advantages that will inure to the child.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 April 2019.

Associate:

Date: 11 April 2019