Sandala and Nerandon (No 2)

[2020] FamCA 845

FAMILY COURT OF AUSTRALIA

SANDALA & NERANDON (NO. 2) [2020] FamCA 845

FAMILY LAW – Application to take the child to Country B for a temporary visit – where Final Orders were made in 2017 providing for the child to live with the Father and spend time with the Mother including overseas travel – Final Orders stayed – where Mother’s travel with the child was predicated upon discharging or substituting Country F court orders – where Father is incarcerated – where Mother has sole parental responsibility for child in the interim – where Mother’s husband and other child are Country B citizens – where remaining in Australia allegedly prejudices the Mother’s permanent residency status in Country B – COVID-19 – travel documents – Hague Convention country – application refused.

Family Law Act 1975 (Cth)
Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII

APPLICANT: Ms Sandala

RESPONDENT: Mr Nerandon

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: SYC 4956 of 2019

DATE DELIVERED: 2 October 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: O'Sullivan Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanford Solicitors & Mediators

Orders

1. The Mother’s Application in a Case filed 2 September 2020 seeking to temporarily remove X from Australia is refused and dismissed.

2. The Father’s Application to vary orders relating to X is refused and dismissed.

3. The matter is returned to the Registrar’s list in the Sydney Registry of the Family Court of Australia at 9 am on 28 October 2020 for directions to be given to prepare the matter for trial.

   (a)To join the teleconference referred to above please follow these instructions from any phone:

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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 Sandala & Nerandon 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 CANBERRA

FILE NUMBER: SYC 4956 of 2019

Ms Sandala

Applicant

And

Mr Nerandon

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the Mother’s application, pending final hearing, to temporarily take the child of the parties’ relationship, X, born in 2009, out of Australia to Country B for a temporary visit, returning to Australia within 28 days. 

2. The application occurs in the context of previous final orders made on 11 October 2017 by Justice Johns, that provided for X to live with the Father and spend time with the Mother.  Those orders provided for different arrangements dependent upon whether the Mother was seeking to spend time with X in Australia or overseas.  The orders specifically provided for X to travel to Country B with her Mother.  The Mother’s ability to spend time with X overseas was predicated upon discharging orders in Indonesia in relation to X, or substituting orders in Indonesia so that those orders provide for the Father to be the sole custodian of X.

3. Those final orders were, by consent, stayed on 3 December 2019.  They were, at least in part, superseded by X’s current circumstances which see X living with the Mother in Australia.  The Father is currently incarcerated.  The substituted interim orders provided for the Mother to have sole parental responsibility for X, for X to live with her and, should X request to communicate with the Father by telephone, the Mother is obliged to facilitate such.

4. The circumstances of the Mother’s application to take X to Country B are as follows.

5. The Mother’s husband, and their child, are citizens of Country B and live there.  The Mother was living in Country B until June 2019 when she travelled to Australia to care for X and to take part in these proceedings.  It should be acknowledged that these proceedings were listed for final trial to take place in September 2020, but were vacated due to an inability to properly allow the Father to take part in the proceedings by video link, given that he was held in a custodial facility.

6. The Mother says that remaining in Australia prejudices her permanent residency status in Country B.  She relies on a letter from a Country B attorney to her husband offering the opinion that the Mother’s Lawful Permanent Resident card is only valid for a trip abroad lasting less than a year.  A trip in excess of such time will cause the Mother’s permanent residency status to be deemed abandoned, and she will not be able to re-enter Country B on the basis of the card as it will be deemed abandoned.  The Mother can apply for a re-entry permit, but must be physically present in Country B when she does so.  The attorney also pointed to absences from Country B for greater than 6 month periods creating a presumption of abandonment in the pursuit of Country B naturalisation.

7. The Mother concedes that she has previously travelled to Country B without X in order to maintain her visa.  I was not advised when this had occurred, nor for how long.

8. The Mother provided a number of documents in support of her application.

9. The Mother obtained permanent residency status for X in Country B on 22 April 2020, at Annexure B of her affidavit attaching a document to confirm that status.  While the document indicates that a petition by the Mother’s husband in respect of X has been approved, it is unclear precisely what the approval is for.

10. The Mother also relied upon correspondence from the Australian Department of Home Affairs, providing an exemption for X and the Mother in restrictions in relation to departure from Australia.  The authorisation for X on the grounds that she is “relocating overseas for more than 3 months.”

11. Further the Mother provided a notice of grant to her of a resident return visa.  The approval in relation to return does not appear to extend past 3 September 2020.

12. The Mother also deposes to travel conditions under the current COVID-19 restrictions.  She deposes that there is a cap on international arrivals into Sydney, and that she has searched and found that there appear to be continued commercial flights from Sydney into D City, her proposed destination in Country B.  Although she says that she has sufficient funds to over quarantine costs on return to Australia, she provided no evidence that she would be likely, in the proposed timeframe for her travel, to fall within the cap on international arrivals for her and X’s return to Australia.

13. The Mother points to the status of Country B as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

The Father’s application in relation to contact with X

1. The Father is not currently having contact with X.  He is in custody.  Consent terms are in place that provide for contact to take place at the instigation of X.  There is no indication that X has requested such contact.  There is no identification of circumstances arising that call for the consideration of a change from the current orders[1] pending final hearing, despite the delay to the final hearing.

   [1] See Rice v Asplund

2. The Father’s request for a change in those arrangements should not be allowed.

3. The Father’s current position also means that, at least temporarily, it cannot be thought that there are strong benefits of meaningful relationship for X with the Father.

The Mother’s application

1. It should be acknowledged that the Mother faces a difficult position.  Her anticipated resolution of these issues on a final basis has been frustrated by the Father’s incarceration, which has necessitated the delay of that resolution.

2. Although there is no requirement that there be compelling reasons identified in support of an interim application for international travel, the Mother has presented strong reasons, connected to both the ongoing separation from family, and migration and visa related purposes.

3. Additionally what the Mother seeks is travel to a Hague Convention country.

4. There are, however, a number of matters that point against the Mother’s application.

5. Removal of a child from the jurisdiction raises the spectre of, if the child is not returned, the interim determination functioning as a de facto final determination absent the consideration of the merits of the case on the testing of the evidence.  Such an outcome is counter to the best interests of a child.  Further, even if the removal is not permanent, for example where there is a forced return from a Hague Convention signatory, the process of return is still accompanied by varying levels of difficulty and distress.

6. In either case, the risk is as to the best interest of the child, occasioned by the potential disregard, or at least delay of, the benefits of meaningful relationship, or of the nature of the relationship between the child and that parent.  That risk is connected (in large part) to the risk that a parent may not return, or at least not return willingly with the child.  Amelioration of that risk ameliorates the concerns arising from the travel in relation to the best interests of the child.

7. The issue is whether there is a risk of retention, and the degree to which that risk is ameliorated.  As observed, the Mother has strong reason to be in the Country B with X.  She has a life and family there.  She has no corresponding links to Australia.  Nothing was identified as drawing her to Australia other than the proceedings in relation to X that she is currently involved in.

8. While in some cases a bond is proposed to provide some form of guarantee of return, or to provide a facility to pursue the matter if there was a non-return, no bond was suggested by the Mother.

9. While also the arrangements for return might be persuasive of the likelihood of a parent returning with a child, that was not the case here.  The Mother’s supporting case indicated that X has permanent residency in Country B.  The Mother’s documents spoke to the peril occasioned to her residency status on Country B if the Mother were only to remain there for a short period.  Her documents in relation to return Australia did not suggest that X was merely going for 28 days, but for a period greater than 3 months.  The Mother’s documents regarding return to Australia do not appear to provide for her return after the start of September 2020.  No evidence was presented to show that the Mother and X would fall within the cap for arrivals within the period nominated by the Mother.

10. That left little amelioration of the risk of non-return other than the status of Country B as a Hague Convention country.  However, the Mother is a citizen of Indonesia, with orders that provide for X to be in her custody from the Country F Court.  The Mother has not undertaken the steps determined by Johns J as necessary to permit travel to Country B (even if those orders are now suspended).  This undermines the Hague protection, particularly should either the Mother deviate from her travel to Country B (which seems relatively unlikely given her links to Country B), or should there be a dispute as to X’s habitual residence.

11. It should be further noted that it is conceded that there is an international pandemic at present.  The degree to which X may be affected, or placed at risk by this in travelling to Country B was not addressed.

Conclusion

1. Although the potential impact on the Mother’s residency in Country B is highly undesirable, the balance in this case occasioned by the circumstances of that travel on an interim basis points against the travel.  The situation may be different on final determination of the matter.  On an interim basis the risks remain unresolved and while there is at least a temporary disruption of relationship with the Father in any event, what is at stake is a more substantial and ongoing disruption should there be a retention.  On the limited material as to what is in X’s best interests (they being the paramount consideration in determining this application), this is a significant consideration.  Given the nature of the material placed by the Mother before the Court there is little objective reason to be assured of a return in accordance with the orders proposed by the Mother.

2. The Mother’s application is refused.

3. However, these are also matters that point to this case receiving priority in the list.  The determination of the travel to Country B on a final basis is urgent.  The matter was listed for final determination but unable to then be dealt with due to the Father’s incarceration.  The Father’s incarceration does not necessarily prevent the matter being listed for final determination in the near future provided arrangements can then be made for his proper involvement in the proceedings.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 October 2020.

Associate: 

Date:  2 October 2020

Mother’s Minute of Orders Sought

That in accordance with section 65Y and Section 65Z Family Law Act the mother be at liberty to travel with the child X born in 2009 to Country B provided that the mother returns X to the Commonwealth of Australia by no later than 28 days after the date of departure.