Salmon and Marin

[2011] FamCA 233

FAMILY COURT OF AUSTRALIA

SALMON & MARIN [2011] FamCA 233

FAMILY LAW – CHILDREN – Father’s proposal to take children for a trip to Country E – Mother opposed – Children’s best interests considered – Orders made allowing for trip to take place –Orders made to allow passports to issue for children

Constitution ss 75, 76, 77
Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 67ZC, 61C, 61DA, 64B(2), 68B, 60CC

GDPW v IDPW (2004) FLC 93-206
Marsden & Winch (2009) FamCAFC 152
Miller & Harrington (2008) FLC 98-283
Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (2004) 219 CLR 365
Rice & Asplund (1997) FLC 90-725

APPLICANT: Mr Salmon

RESPONDENT: Ms Marin

FILE NUMBER: BRF 3924 of 2003

DATE DELIVERED: 16 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 14 and 16 February 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT:

In person (14/02/2011)

No appearance (16/02/2011)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hawdon

Forest Glen Lawyers

Orders

IT IS ORDERED

1. The children B born … June 1995, C born … June 1998 and D born … December 2000 are permitted to leave the Commonwealth of Australia without the written consent or any consent of the mother.

2. The requirement of the mother’s signature on any application for the issue of passports for the children, or the issue of visas for the children to visit Country E, is dispensed with. 

3. Until further order the father has sole parental responsibility for the children including in relation to the issue of passports and visas for them and to give effect to these orders. 

4. The father may travel with the children to Country E on the following conditions:

   a.the father’s and the children’s departure be not earlier than 5 March 2011

   b.the father must return the children to Australia by no later than 15 May 2011

   c.the father must as soon as possible after obtaining the children’s passports and visas provide them to the independent children’s lawyer unless earlier he has provided to her, which in any event he must do:

   i.a full itinerary of the children’s travel in Country E including in so far as may be possible all accommodation addresses and including 2 telephone numbers

   ii.an airline or travel agent issued schedule of booked, prepaid and receipted return air tickets for himself and the children showing booked and prepaid return air tickets on a date to ensure the children are back in Australia by no later than 15 May 2011 

   iii.prepaid telephone card or cards to the value of $20.00 for the independent children’s lawyer to provide to the mother to enable the mother to telephone the children during their time in Country E at the telephone numbers in subparagraph i.

5. If pursuant to subparagraph 4c the father provides the children’s passports and visas to the independent children’s lawyer she must release the children’s passports and visas to the father upon his provision to her of the documents and things referred to in paragraph 4c. 

6. The independent children’s lawyer after the father’s and the children’s departure must provide to the mother the prepaid telephone card or cards and the 2 telephone numbers provided to her by the father.

7. The children’s names be removed immediately from the Airport Watch List. 

8. The father must give the children’s passports to the independent children’s lawyer for safe keeping no later than 20 May 2011.

9. The dates for trial commencing on 14 March 2011 are vacated.

10. Any application by the independent children’s lawyer for the appointment of a case guardian for the mother, in relation to both the parenting and the property proceedings be listed before the Honourable Justice O’Reilly at 10.00am on 15 June 2011. 

11. The matter be listed before the Honourable Justice O’Reilly at 10.00am on 15 June 2011 for further trial directions and the allocation of further trial dates. 

NOTATION:

The listing at 10.00am on 15 June 2011 is to be a half day listing. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3924 of 2003

Mr Salmon

Applicant

And

Ms Marin 

Respondent

REASONS FOR JUDGMENT

Background

1. This matter has a long history.  I have set it out elsewhere and need not do so again for the purpose of dealing with the present application.

2. A trial is scheduled to proceed in relation to both parenting and property matters on 14 March 2011 for ten days as fixed dates. 

3. My most recent involvement in the matter is reflected in reasons for judgment 7 December 2010 and transcripts 4 February 2011 and 14 February 2011 to which I would refer as part of the recent history relevant to this application. 

4. The parenting proceedings concern three children B born in June 1995 now 15½ years, C born in June 1998 now 12½ years and D born in December 2000 now 10 years. 

Father’s application

1. By application in a case filed 8 February 2011 (original filed 7 February 2011) the father seeks a variety of interim and interlocutory relief.  I propose, however, presently, to deal only with those parts of the application which relate to the father’s proposal that:

   1.      The children travel to Country E with him

   2.      All necessary orders be made to allow for passports to issue for the children including an order for sole parental responsibility on the interim basis

   3.      The children’s names be removed from the Airport Watch List

   4.      The trial be postponed to allow for the travel to take place, with dates to be reallocated not before the end of April 2011 (now, with intervening events, not before mid 2011).

2. The father’s proposal includes some nominated conditions, including that he provide to the independent children's lawyer a full travel itinerary and overseas contact details before departure; and the independent children's lawyer provide to the mother two nominated telephone numbers after the father’s and the children’s arrival in Country E and pass onto the mother prepaid telephone cards of up to $20 value to enable the mother to telephone the children while they are overseas.

3. I am conscious that I have distilled the substance of the father’s application concerning these matters rather than using his direct words, the father being, like the mother, a litigant in person.

4. The remaining parts of the father’s amended application filed 8 February 2010, if necessary, can be listed on a later date.

Postponement of the trial/mother’s position/case guardian

1. Although the father’s application to postpone the trial is for the purpose of the travel, and if I allow the travel the trial necessarily will be postponed, I need not concern myself overly with this aspect of the matter as otherwise I would need to, because in any event the mother for some time has been seeking that the trial be put off for the several reasons recorded in the transcripts of hearings on various dates, namely, that she cannot be ready for trial by the allocated dates.  Indeed, on Monday 14 February 2011 (2 days ago), the mother said:

   I don’t have issue with postponement of the trial.

2. Further, although until recently I had considered that the trial should proceed to finality without a case guardian for the mother, in the difficult circumstances which have obtained since the lengthy history of my involvement in the matter since mid-late 2006, now nearly five years, on fresh consideration of this aspect of the matter on 14 February 2011 I invited the independent children's lawyer to apply for the appointment of a nominated case guardian for the mother for both the principal parenting and property proceedings and I anticipate that such application soon will be filed.  See transcript 14 February 2011.  If a case guardian is appointed, the trial would not be able to proceed on the allocated dates, as the case guardian would need to obtain copies of relevant filed documents and prepare either for trial or perhaps settlement of the proceedings by consent order.  (Previously, I had endeavoured to have a case guardian appointed for the mother by the Guardian and Administration Tribunal (Queensland) with no result. See the several orders and transcripts between 5 June 2006, when I took over this matter from Carmody J, and 15 June 2010).

3. A case guardian, as is understood, would be the “decision maker” for the mother, so as to bind her both in relation to procedural and substantive decisions.  In short, it seems to me now that potentially, but subject to hearing further argument, the mother should have the benefit of a case guardian so that, in any event, the trial is unlikely to be able to proceed on the allocated dates. 

4. In this context, I have carefully considered whether the hearing of the father’s application to take the children overseas should await the independent children's lawyer’s application for appointment of a case guardian.  However, I do not think such is necessary for me to be able, properly, to determine the father’s present application in relation to the children’s best interests, the order, in particular, not being a final parenting order.  Further, as will be seen, if I awaited such application and outcome, such entirely would defeat the purpose of the father’s present application timewise. 

Procedural fairness

1. The father’s application in a case which originally sought the relief I will deal with was mentioned by him in Court on 4 February 2011 as an application he had lodged with the Registry for filing but which had not been filed or allocated hearing dates.  The application and supporting material had been lodged for filing, apparently, on 31 January 2011, but not accepted for filing as at 4 February 2011.  The “filed” date on the material is now stamped as 7 February 2011, whereas, as is plain by the transcript 4 February 2011, I had intended it to be stamped as filed by the Registry on 4 February 2011.   Nothing much, however, turns on that. 

2. Subsequently, the father filed an amended application in a case, which has the “filed” date stamped as 8 February 2011.

3. On 4 February 2011 I ordered:

   1.   The father’s application filed on 4 February 2011 for adjournment of the trial be listed for hearing at 10 am on Monday 14 February 2011.

   2.   All other applications filed since 7 December 2010 be listed for hearing at 2.15 pm on Monday 14 February 2011.

   3.   All affidavits by the parties and the independent children’s lawyer that they may wish to rely on be filed by 4 pm on Thursday 10 February 2011. 

4. The material relied on by the father comprises two affidavits by him filed on 7 February 2011 and two affidavits by him filed on 10 February 2011.

5. On 14 February 2011, last Monday, the mother said she had received the father’s amended application in a case and affidavits only on Friday 11 February 2011, and was not able to respond to the application or material either on that day or the following day 15 February 2011.

6. Further, on 14 February 2011 Ms Hawdon, the independent children’s lawyer, read and relied on four reports, namely those annexed to the affidavits of Ms F, family consultant, Dr G, psychiatrist, Ms H, senior indigenous consultant, and Mr I, marketing director but whose evidence was in respect of a Country E cultural report.

7. The mother acknowledged that she had received Ms F’s family report late last year, and the reports of Ms H and Mr I “in the last few weeks”, but said she had not seen the affidavit or report of Dr G annexing a psychiatric assessment report in relation to the father.

8. In those circumstances, having regard to the matters in issue for determination (limited to those mentioned) I determined on 14 February 2011 that in order to accord procedural fairness to the mother I ought not proceed and stood the matter over until 9am today, 16 February 2011.  For this purpose I ensured that the Associate would scan and email to the mother Dr G’s affidavit and annexed report.  This was done after Court on 14 February 2011 at 11.07am Brisbane time. Indeed, that much is evidenced in ex 2, an email received by the Court from the mother today, in response to the Associate’s email and attachment.

9. I am satisfied in all of the circumstances that the time interval of Friday 11 February 2011 until today Wednesday 16 February 2011 is adequate time to afford procedural fairness to the mother in relation to all of the material she had by 11 February 2011, and that the time interval Monday 14 February 2011 until today Wednesday 16 February 2011 is adequate time to afford procedural fairness to the mother in relation to Dr G’s report.

10. The mother on 14 February 2011 read and relied on three affidavits by herself, namely those filed on 13 October 2010, 9 February 2011 and 14 February 2011, and two by Ms J, her sister, both filed on 14 February 2011. The mother also filed an application in a case, stamped as filed 16 February 2011 (but possibly received by the Registry before that date) in which, by par 2, she sought that the father’s application in a case be “struck out” on the basis that it is supported by “false statements” and is vexatious. In what follows, I have had regard to this as well.

11. On 14 February 2011, I made clear that I would allow the mother the opportunity this morning to give oral evidence, if necessary, in response to any of the evidence relied on by the father and the independent children’s lawyer. 

12. Now, the mother has not appeared today.

13. In relation to that, and in order to save time, I will not repeat what transpired this morning, which is available for complete reference by transcript of the proceedings this morning.  I will for the purpose of these reasons, however, refer to a medical certificate the mother produced (part of ex 3), and all of my observations this morning about that medical certificate: transcript 16 February 2011 40/25 – 43/30. 

Further observation

1. Although I am satisfied, independently, that standing the matter over until today has afforded the mother adequate time for procedural fairness, there is the circumstance also that, if I had not been able to hear and determine the father’s application in a case by today, the purpose of it would be defeated.

2. As will be seen, the father’s application in a case has been triggered by opportunity for one of the children, D, to participate in a film production project in Country E.  The children do not, as yet, have passports.  The father has been told that, whilst passports can be issued within 48 hours, after issue he would need to arrange visas which would take 3-4 days, so that, in reality, about 7 days will be needed if he is to be able to fly the children from Australia to Country E in time for the project. Initially, he had booked flight tickets for himself and the children to depart Australia on 23 February 2011. Already, that possibility has been delayed. Now, as will be seen, a new timeframe is proposed.

3. The father lodged his application in the Registry, as I have said, apparently on 31 January 2011.  There thus can be no criticism of him for not acting promptly.  In his evidence, which I accept, the father deposed to the circumstance that the opportunity for D to participate in the project was first offered in late January 2011, indeed, 21 January 2011, as evidenced in correspondence included in the father’s material.

Principles

1. The usual provision of the Family Law Act1975 (Cth) (the Act) under which these types of applications are considered is s 67ZC. However, as the High Court pointed out in Minister for Immigration and Multicultural and Indigenous Affairs and B (No 3) (2004) 219 CLR 365, that provision does not itself expressly give jurisdiction in respect of a matter for the purpose of s 75 to s 77 of the Constitution, and that the valid application of that provision therefore depends upon some other provision in Part VII of the Act creating a matter within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach or be inferentially linked.

2. In relation to that decision I refer to my decision in GDPW v IDPW (2004) FLC 93-206 at pars 4-5 where, after referring to that High Court authority and the parts of it to which I have just referred, I said (par 5):

   In the absence of authority on the point, it seems to me that s 61C(1) in Part VII of the Act may be a provision which creates a “matter” to which s 67ZC can attach, by imposing on parents the duty of parental responsibility. It seems to me that the arrangement by a parent for the issuing to a child of a passport to enable the child to participate in overseas travel is a quite ordinary incident of parental responsibility, and a matter concerning a child's welfare.

3. Since that decision there have been considerable amendments to the Act which commenced on 1 July 2006. However, s 61C in Part VII of the Act has remained. Although amended in 2006, nonetheless, it still provides that each of the parents of a child who is not 18 years has parental responsibility for the child. I would draw attention also to s 61C(3), which provides that subsection (1) has effect subject to any order of a Court for the time being in force whether or not made under the Act.

4. There is also now, in these types of applications, the potential operation of s 61DA of the Act which raises the rebuttable presumption of equal shared parental responsibility when making parenting orders on the basis that under s 64B(2) parenting orders may deal with “any other aspect” of the welfare of a child or parental responsibility for a child. I do not think it is necessary however to look for any source of jurisdictional power other than s 67ZC, as I have explained it, the matter inferentially linked being the ordinary incidence of parental responsibility under s 61C.

5. In relation to s 67ZC it is fundamental that I mention that although it provides jurisdiction to make orders relating to the welfare of a child, by s 67ZC(2), in deciding whether to make an order under subsection (1) in relation to a child the Court must regard the best interests of the child as the paramount consideration.  Thus, unlike in relation to s 68B, which has troubled the Court as a welfare provision with uncertainty as to whether the best interests of the child does not apply at all, is relevant but not paramount, or paramount, there is no such troubling in relation to s67ZC which spells out that in considering the welfare of a child for the purpose of that provision the best interests of the child is the paramount consideration.

6. This has the result that I am required, in determining the children's best interests in relation to the mother's application, to consider and apply each of the relevant provisions of s60CC because that is what the statute has provided I must do in order to determine what is in a child's best interests.  A cursory glance at those provisions shows that most of them are not relevant to this type of application, as opposed to living with and spending time with arrangements. However, the statutory mandate is one I must follow.  Before doing so, however, it is appropriate that I make observation upon some of the more traditional things that the judges have decided are relevant in these types of applications. 

Traditional matters to be taken into account

Purpose of travel

1. The father deposes that his application is prompted by D and the father having been invited to take part in a film production project in the central part of Country E.  Initially, the dates proposed were late January to early-mid March 2011.  However, the dates were changed to commence late February and end about late March.  As at today, as is evident by ex 4, and brief oral evidence that the father has given today, the dates again have been changed so that filming will now not commence until about 14 March 2011, and, as best as presently advised, are anticipated to be about one month in duration. 

1. The father annexes documents showing invitations for and the roles of D and himself in the film project. According to those documents, the film project is one approved by the Government of Country E.  The documents annexed include an invitation that D is to be cast as a “boy”, and that the father is to be “crew”, namely, “cast guardian”.  The father deposes that D already has appeared in a few scenes in the film shot in Australia, and that indeed he has been “handpicked” for the role he is to play.  I have the impression, from the father’s material, that this matter is about D’s involvement in the film, rather than the father’s involvement in the film, and that the father’s involvement in essence is one of “parent”. In other words, the role of cast guardian is a parental role, the focus of course here being on the child not the father.

2. The father deposes that he would not like to go to Country E only with D, and leave B and C behind, here in Australia, as that would not be fair to them.  Further, he deposes that he does not have support to leave B and C here with some other person or family for the proposed travel period.  He describes the opportunity for D as a “once in a lifetime” opportunity.

3. Further, he deposes that the children have never been to Country E, and he is the only person in his family in Australia.  The father has extended family in Country E who hold professional and academic roles.  The children’s paternal grandmother, whom the children have met in Australia, lives in Country E.  They have never been able to visit her there, nor members of the father’s extended family there, nor indeed the land which is their father’s birthplace.  In Country E, the children would have the opportunity to meet their extended Country E family, several of whom are depicted in photographs attached to the father’s material.  They would have opportunity for connection with and exposure to their Country E cultural heritage.

Duration of travel

1. The father presently proposes, as given in brief oral evidence this morning, to book flight tickets Australia to Country E departing 5 March 2011 and return tickets departing Country E 13 May 2011, with effect that the children be back in Australia no later than 15 May 2011, so that apart from attendance for the film project the children would have opportunity to spend time with their extended family and exposure to their Country E culture. In other words, as put by the father impliedly this morning in his oral evidence, the now proposed duration of travel would allow the children to participate in a major family event. 

2. The father has not yet provided a confirmed itinerary, awaiting this judgment before finalising the plans and paying for the tickets.  For this reason, he invites that there be a condition that passports and visas for the children issue, the independent children’s lawyer hold them until he has lodged with the independent children’s lawyer a full itinerary, including contact telephone numbers, and that the children’s passports and visas then be released to him.  The confirmed itinerary, as I understand his evidence, will include evidence of booked and prepaid return air tickets. 

3. The circumstance that the father’s application includes that the trial be postponed now, until mid 2011, has effect that if I allow the application I would include that the father must return the children by no later than 15 May 2011.

Expense and accommodation

1. The film project organisers will be paying for D’s and the father’s accommodation for the duration of the project.  The father will pay for the expenses of B and C.  After the film project, the father proposes accommodation with extended family members, at no cost.

Connecting factors to Australia/ likelihood of risk of non-return of the children

1. The father and the mother are tenants in common in relation to a property at K Town near Brisbane.  The father has annexed to his material a registration confirmation statement issued by the Department of Natural Resources and Water, Queensland, showing this.

2. The father deposes that since mid-late 2005, he solely has been paying a mortgage on that property and has paid about $60,000 towards the mortgage and other costs since 2003, including interest.

3. The father currently is undertaking the last module of tertiary education.  He deposes to having previously had employment as a government employee in Australia and presently works part-time. 

4. He says that he has lived outside of Country E since 1991, with thus no realistic better career path than here, having visited Country E since coming here in 1991 only for two short trips in 1994-95 and 1999-2000. 

5. He has lived in Australia for almost 20 years, and established his life here. 

6. The children are Australian citizens. 

7. He deposes to having pre-paid educational expenses in Australia for the children for the 2011 school year. 

8. As mentioned, the father himself presently is undertaking the last module of tertiary education here.

9. He deposes “I have never been a flight risk,” for reasons he explains. 

10. In the principal parenting proceedings, he seeks an order for sole parental responsibility.  The children have lived with him since 2005.  He deposes that he, solely, has been bringing up the children since 2005, and said candidly two things:

    It is not wise for me to jeopardise all this by not coming back to Australia with the children.;

    and:

If my intentions were otherwise, it was beneficial for me to gain sole responsibility by March 2011 and then leave.

1. The mother alleges in her material (and in email correspondence with the father, and to the Court) that the father has land in Country E, and that if his application is granted he is unlikely to return the children, in particular, because previously he has “fraudulently deceived” authorities and the Court and fabricated documents. 

2. The mother alleges that the father is very “clever,” and that his “sudden” application, in effect, is to deceive the Court, and me as the judge hearing the matter, in relation to his fraudulent intentions to keep the children in Country E. 

3. Whilst I have considered the mother’s allegations and material, and cannot make findings of fact in relation to her many allegations without cross-examination in a full trial, the tenor of it runs counter to the fabric of the father’s application and reasons for it, and the unlikelihood, as I determine, that there would be absconsion by the father with the children if I granted his application, so that he would jeopardise his links with Australia, as described.

Children’s educational needs

1. The father deposed that he has been in touch with the children’s schools as to their educational needs if they should be in Country E.  He annexes emails with the children’s teachers as to these matters. 

2. B is in year 10, C in year 8, both in high school, and D in year 6 in primary school.  The father has a strong interest in the children’s education.  He deposes that the children are highly motivated, keen and fast learners.  He deposes that he has a teaching background in both primary and high school settings, and that his family members in Country E are highly educated.  He feels able, with this background, to attend to advised work for the children to minimise disruption to their studies by the trip so as to maintain their academic levels. 

3. In short, in oral evidence today, indeed, the father said that he will ensure that the children adhere to their work program up until their projected return date to school, Monday 16 May 2011, and that other family members in Country E will be able to assist the children with their studies which, by and large, the children would undertake electronically, as they are accustomed to doing. 

4. I am conscious that C’s teacher, in an email to the father as early as 21 January 2011, when the father was trying to put all aspects of the proposed trip together, and importantly, first contacted the children’s schools, C’s teacher mentioned that there is a school camp between 14 and 18 March 2011, and that it was to be hoped that C could participate in that. However, the email from C’s teacher does not suggest that his schooling would suffer if he were not able to participate in that school camp, although described as an integral part of the year 8 curriculum and as well as an accompanying integrated task. 

Parental responsibility - interim order

1. The father seeks an interim order that he have sole parental responsibility for the children. 

2. He has received correspondence from the Department of Foreign Affairs and Trade rejecting applications for the issue of passports for the children on the basis of the mother’s refused consent.  The letters are annexed to his material.

3. Section 61DA(3) of the Act provides that when the Court is making an interim order, the presumption in 61DA(1) that it is in the children’s best interests that their parents have equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances to apply the presumption in relation to the making of an interim order.

4. Pursuant to the Australian Passports Act 2005 (Cth), s 11, a passport cannot issue for a child unless each person with parental responsibility consents, or the Court makes an order permitting a child to travel internationally absent a parent’s consent.

5. If I should make an order permitting the proposed travel for the children, absent the mother’s consent, or an order dispensing with her consent to issue of the passports for the children, such should be sufficient for the Department to issue passports for the children.

6. Given the tight timeline, however, such that if I allow the father’s application, there should not be any risk of departmental refusal for the issue of passports for the children, if I should determine that the travel is in their best interests, I would thus, for the purpose of s 61DA(3), determine that it is not appropriate, in the particular circumstances of the case, for the presumption presently to apply to any interim order, and presently would favour an interim order for the father to have sole parental responsibility for the children. In particular, such an interim order would obviate any risk that otherwise passports for the children may not issue in time for the father’s proposed travel with them.

The children’s best interests

1. As I have observed elsewhere, many of the s 60CC factors are not relevant to this type of application, as opposed to living with and spending time arrangements. 

2. I will, therefore, limit my observation to the factors relevant to the father’s present application.   

Section 60CC(2) – the primary considerations

Meaningful relationship

1. The children presently have a meaningful relationship with the father. 

2. Unfortunately, despite orders made by Smith JR on 31 January 2005, order 3, for the children to spend supervised time with the mother, this has not occurred, so that they have seen very little of the mother since, at least, 2005.  Whilst the full reasons for this are yet to be explored at a trial, the competing contentions seem to be, by the father, that the mother will not avail herself of use of a contact centre, and, by the mother, that the father is not able to meet the mother’s demands for the children to spend time with her, at her request, outside Court orders.

3. The children, however, plainly love the mother, as evidenced by letters from each of the children to the mother, annexed to the father’s material. 

4. The short period of the father’s proposed travel in Country E with the children will not affect the benefit to them of a meaningful relationship with the mother now, or prospectively in the future.

5. The mother alleges in her material the father’s intention to deceive the Court, the authorities, and her, and to abscond with the children to Country E to complete his “program” of severing relationship between the children and her.  See, for example, her affidavits read and relied on, and material sent to the Court today, exs 1 and 2.  On the limited material available, and which I am able to consider for the purpose of the father’s application, I am unable to conclude that there is merit in the mother’s allegations.  That, of course, is by way of observation only, for present purposes, there yet having to be a full trial in the matter.

6. The father proposes that he provide to the independent children's lawyer, to be given to the mother, prepaid phone cards to the value of $20 which would enable the mother to call the children for up to 5000 minutes of time, that is, 83 hours, while the children are in Country E, and to provide to the independent children's lawyer 2 nominated telephone contact numbers for the independent children's lawyer to provide to the mother. 

Need for protection

1. The mother’s material includes reference to a past suicide attempt by the father, and to an allegation that he has threatened to cut a child’s or the children’s throat or throats. 

2. Ms F, the family consultant in the matter, however, concluded that there are no safety issues concerning the children being with the father:  see family report, pars 48-49. 

3. Dr G, psychiatrist, assessed the father on 22 November 2010.  His report concludes that he believes the father to be of sound mind and free of any psychiatric disturbance and, therefore, capable of caring for the children.  Whilst Dr G’s report did not refer to any alleged past suicide attempt (the father acknowledging, at least, depression in the late 1990s) he referred to the circumstance that for the past five years the father has been raising the children and appears to be well placed doing so.

4. Ms F, in relation to the mother, refers to various reports concerning the mother’s mental health and concerns in that regard in relation to the children: pars 53-57 and 65.  These matters however, as well as past psychiatric reports concerning the mother, are yet to be tested at trial. 

Section 60CC(3) – the additional considerations

Any views expressed by the children

1. The children are most desirous of visiting Country E with the father.  Apart from letters to the mother, to which I have referred, each child has written a “letter to the Judge”, annexed to the father’s material.  The style, fluidity, and content of those letters do not seem to me to have the mark of coaching by the father. 

2. It is plain, however, that the complexity of the children’s circumstances and issues are such that I ought not place great weight on their expressed views, especially in the context of the children’s obvious excitement in relation to the prospective overseas trip, and indeed, their first overseas trip.

The nature of the children’s relationships

1. I have referred to the children’s relationship with their parents.  If they should have opportunity to travel to Country E, they would meet members of their extended family there on the father’s side.  For reasons already explained, the children’s existing meaningful relationship with the mother prospectively is not likely to be diminished by a few months in Country E.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

1. This factor is not of great weight in relation to the limited scope of the father’s application.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living

1. This factor is not of great weight in relation to the limited scope of the father’s application.

Practical difficulty and expense

1. This factor is not of great weight in relation to the limited scope of the father’s application.

The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs

1. This factor is not of great weight in relation to the limited scope of the father’s application.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant

1. The children’s father is of Country E heritage.

2. The children’s mother is of indigenous Aboriginal heritage.

3. For the purposes of the imminent parenting trial, the independent children’s lawyer obtained a report by Mr I, a marketing director, in relation to the children’s Country E heritage.  Mr I interviewed B on his own and C and D together.  He said B is familiar with various aspects of the Country E culture and events tied with Country E cultural settings, and that C and D voiced similar sentiments as their elder sibling. To confirm their knowledge of the Country E culture, each answered questions on a questionnaire quite satisfactorily. Mr I remarked that the children even responded by writing their names in Country E script, which showed that even living outside of Country E, and born of mixed parentage, they were able to learn the language of the father, which Mr I described as admirable: “an admirable achievement for these young kids.”  He observed their love to eat Country E food and listen to Country E music and watch Country E movies.  He concluded, after a 3 hour interview, and based on questionnaires and other discussions during that time, that the children’s knowledge of Country E culture is above average.

4. The independent children’s lawyer commissioned also a report by Ms H, senior indigenous consultant, in relation to the children’s Aboriginal heritage.  Ms H said that the children presented as well grounded individuals with a developing appreciation for their Aboriginal heritage. 

5. She said it was clear that the children do not want disruption to the life they are enjoying, and that the inclusion of Ms L, being an elder, Ms L, and other Aboriginal community members, and Aboriginal social events, arts and music are assisting the children’s development.

6. She said that the children need to be connected with a number of Aboriginal community based organisations and government service providers such as Aboriginal Health Legal Employment Education and Sport and Recreation, and that, for example, connection to relevant Aboriginal government bodies would allow for the development of health education and employment opportunities. 

7. By way of conclusion, Ms H said that given that the mother identifies as Aboriginal and that the father identifies as Country E, the children need cultural balance. 

8. While the father can provide Country E cultural input, the children need to be provided Aboriginal cultural input.  In the current absence of the mother from the children’s home environment, the cultural input by Aboriginal elders, members, and respected Aboriginal community persons is needed.  There is no indication in the material, however, that the proposed trip to Country E would interfere with the development of the children’s Aboriginal cultural heritage.

Aboriginal heritage

1. Despite having dealt generally with this matter, as it is a specific subheading in the legislation, I will deal with it also more specifically.

2. The children are Aboriginal in that the mother identifies as Aboriginal. 

3. I have referred already to the careful report by Ms H and her recommendations.

4. If I allow the application for travel to Country E, in my view the recommendations of Ms H will not be disturbed.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

1. Both of the parents love the children.  Both have their best interests at heart and use their best endeavours to fulfil all of their responsibilities as parents.

2. A short trip to Country E, as proposed by the father, is unlikely to impact.

Family violence involving the children or a member of the children’s family or family violence order

1. There are past allegations of family violence, in particular by the mother against the father of severe family violence.

1. However, the limited scope of the present application does not make these matters significantly relevant.  At the trial, the allegations would assume great relevance, at least in relation to the need for determination. The parties have been separated for more than 5 years. If there was violence prior to their separation, Dr G, upon his examination of the father, and assessment of him, has not indentified at present any risk to the children.

Other matters

1. Ms F, the family consultant, recommended that the children live with the father and spend supervised time with the mother, no less than once in each  month; that if the Court makes a determination that a Dr M’s assessment of the mother’s mental health is valid, consideration be given to counselling the children to assist them in understanding their mother’s behaviour; and that furthermore, if such a determination be made, that the father have sole parental responsibility for the children.  The conclusions by Ms F are yet, of course, to be tested at the trial.  However, on the interim basis there is no reason not to have preliminary regard to her views in order to dispose of the present application, which, as I have mentioned, includes that the father have an interim order for sole parental responsibility for the purposes outlined.

2. I have considered the mother’s evidence, as already mentioned.  I have considered also the evidence of Ms J, who is the mother’s sister.  However, much of this evidence is directed to matters which do not need to be decided to dispose of the father’s application. 

Hague Convention

1. Country E is not a signatory to the Hague Convention.

Attitude of the independent children’s lawyer

1. The independent children’s lawyer supports the father’s application, having regard to its various conditions, for reasons recorded on transcript, which I need not repeat, except for one submission, namely that the Country E cultural experience for the children is likely to be of greater benefit to them than C missing his school camp.

Analysis and conclusions

1. Based upon my above analysis of the evidence, observations made, and the statutory matters I am obliged to consider, I determine that the children’s best interests would be met by allowing the father’s application.  In particular, I am satisfied that the children’s meaningful relationship with the mother prospectively would not be impacted by a short period in Country E;  that there is no identifiable risk of harm to them, they having been in the father’s care for five or so years;  there is no identifiable risk that the father would not return the children to Australia at the conclusion of the proposed trip;  the children would benefit by the cultural experience by a connection with their Country E heritage and by meeting and spending time with members of their Country E extended family, including their paternal grandmother;  their schooling and education here is unlikely to suffer;  the trip relatively is of short duration;  and the opportunity to further connect with their Aboriginal culture and heritage here will not be diminished by the short trip.

2. I am conscious that Country E is not a Hague Convention country.  However, I am satisfied, based upon the analysis above, that there is no identifiable risk that the father will not return the children to Australia at the conclusion of the proposed trip.  In particular, he has significant links in Australia, both in relation to real property, established lifestyle and career.

3. I will, therefore, make an order permitting the travel, to depart on the dates proposed by the father.  Such would allow D not only the film project experience, but allow the children to experience their Country E culture, and spend time, as I have mentioned, with their extended family relatives.

4. To facilitate this, I will make orders for the father on the interim basis to have sole parental responsibility and dispense with the necessity for the mother’s consent to the issue of passports for the children or visas for the children, or signature on any documents for those to obtain.

5. On 28 March 2003, that is, more than seven years ago, Registrar Spelleken made an interim consent order that the father and the mother be restrained from moving the children from the Commonwealth of Australia and in support of that ordered that the children’s names be placed on the Airport Watch List.  It was not argued that, having regard to this order, the principle in Rice & Asplund (1997) FLC 90-725 (see also Miller & Harrington (2008) FLC 98-283 at 72 and Marsden & Winch (2009) FamCAFC 152 at 41-7) applied, especially as, expressly, the consent order was an interim order.

6. Even if the rule in those cases did apply, however, the circumstance that the children this year have the opportunity to travel to Country E and for D to have the benefit of being in the film, and all three children the benefit of visiting Country E to experience the culture there and meet and spend time with relatives there, in my view, is a significant change of circumstance.

7. I will order, thus, that the children’s names be removed from the Airport Watch List.

8. The conditions proposed by the father and the independent children’s lawyer will be imposed.

9. On some occasions, a condition of monetary security is imposed.  I will not impose such.  The father has considerable equity, it would appear, in the property he owns at K Town as tenant in common with the mother.  If the father should default in his obligation to return the children to Australia, she would have resort by Court order to equity in that to fund any necessary Court action in lieu of monetary security.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 16 February 2011.

Associate: 

Date: