Sandstrom and Sandstrom (No. 2)

[2008] FamCA 801

FAMILY COURT OF AUSTRALIA

SANDSTROM & SANDSTROM (NO. 2) [2008] FamCA 801

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Sandstrom

RESPONDENT: Mr Sandstrom

FILE NUMBER: SYC 7280 of 2007

DATE DELIVERED: 11 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 11 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Jack Rigg Solicitor

COUNSEL FOR THE RESPONDENT: Mr Corish

SOLICITOR FOR THE RESPONDENT: Staunton & Thompson

Orders

1. Until further order, the child born … December 2002 live with the mother.

2. Until further order, orders are made in terms of paragraphs 7, 8, 9, 10 and 11 of the Application in a Case filed 9 July 2008 as set out hereunder:

   “7.[The mother] will make arrangements for the child to spend time with [the father] should he travel to Australia, subject that such arrangements will not interfere with the child’s attendance at school, and should such a visit occur during school holidays the child be allowed to travel internally within Australia with [the father] for periods not exceeding five (5) days.

   8.That the Father be permitted to liaise directly with the child’s school to obtain any necessary information about the child’s progress.  The mother is to authorise any school the child attends to facilitate this.

   9.Both parents will advise the other as soon as practical if a significant injury or medical emergency occurs to the child whilst in their respective care.

   10.That [the mother] and [the father] shall ensure they keep each other informed of:

   a.any medical problems or illnesses suffered by the child whilst in their care;

   b.any medication that has been prescribed for the child.

   c.their residential address and the particulars of the others who may reside with the child; and

   d.any other parenting information or matters relevant to the child’s welfare.

   11.Liberty to restore on seven (7) days notice for the purpose of the implementation of these Orders.”

3. Until further order the child spend such time with the father in the United States and on such conditions as the parties may agree in writing.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7280 of 2007

MS SANDSTROM

Applicant

And

MR SANDSTROM

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, a daughter who was born in December 2002 and is five years and eight months of age.  The mother and father are 28 and 39 years of age respectively.  They started to live together in the United States of America on 4 January 2002, were married in October 2002 and separated on 1 September 2004 when they were in Australia.  In November 2003 the husband received an offer of a placement for work with his firm or a related entity in Australia.  To that time the parties had been living in the United States.  On 14 February 2004 the parties and the child flew to Australia.  The husband had the benefit of what is called a 457 visa, which I think is a work-related visa, which took him through until 2 June 2007.  The parties separated under one roof in October 2004. 

2. Ultimately, at or around the expiry of his visa, the husband returned to the United States and the wife and the child did not. Then there were proceedings. The husband almost immediately started proceedings in a United States Court in relation to divorce and ancillary relief.  The Court refused to exercise jurisdiction.  Then a request was made to the Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction, for proceedings to commence in Australia Convention for the return of a child wrongfully retained in Australia.  The Central Authority was told about the US Court decision refusing to exercise power and requested that an application be made in the United States for an article 15 declaration. 

3. Article 15 makes provision for a Court in a country from which it is alleged a child was wrongfully removed, or from which a child has been wrongfully retained, to declare that the child was habitually resident and that there is a wrongful removal or retention. 

4. That application was made and a decision was made in a US District Court to the effect that the child was not habitually resident in the United States at the relevant time and that the child was habitually resident in Australia.  There has been an appeal lodged in relation to that issue and that appeal may be heard later this year or early next year. 

5. In the meantime, the question of the child's status in Australia has come before the immigration authorities. The mother has her own 457 visa and she is secure in Australia for a period of four years. However, the Immigration Department  has indicated that it cannot simply attach the child to the mother's new visa and requires the consent of the father or some other authority in order to permit the child to remain in Australia. 

6. All of that has resulted in the mother’s application for an interim parenting order to have the child live with her mother in Australia.  The father relies on an article of the Convention which provides - this is article 16:

   After receiving notice of a wrongful removal or retention of a child in the sense of article 3, the judicial or administrative authorities of the contracting state to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.

7. The problem with that submission is that the provision is incorporated into Australian law by virtue of the Family Law (Child Abduction Convention) Regulations and Regulation 19 says:

   If an application for a return order for a child is made, a Court must not make an order, except an interim order providing for the custody of the child within the meaning of regulation 18, until the application is determined.

8. So going back to article 16, it appears that there is no determination on the merits of the rights of custody until a final order is made. Therefore the Court must not finally determine the issue until the application of the Convention has been determined. 

9. Nextly, in the circumstances there is a good argument to say that there has been no application under the Convention within a reasonable time following receipt of notice.  Notice must have been given during last year and there is still yet no application under the Convention.  Regulation 19 would permit an interim order in any event but the restriction is only triggered by an application, and there is no application here. 

10. Therefore there is nothing to stop me making an interim parenting order in relation to this child, notwithstanding that a request has been made to the Australian Central Authority to commence proceedings under the Regulations. 

11. Turning to the merits of the application, the legislation sets out a series of decisions that one makes, all based around what would be in the best interest of a child. How one determines that is set out in s.60CC of the Family Law Act, which contains primary considerations and additional considerations. The primary considerations are the benefit to a child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, being subjected to or exposed to abuse, neglect or family violence.

12. In the context of this case, the evidence is that the father has had some time with the child since separation and had some time with the child since he went back to America.  That time has been exercised here.  There is no evidence that the mother intends to travel to the United States of America. There is no evidence that if the child was returned to the United States the child would have time with her.  As to the second consideration, there are no allegations, that I am aware of, about abuse. 

13. Nextly, any views expressed by the child and any factor such as the child's maturity and level of understanding the Court thinks are relevant to the weight to be given to those views.  I do not think there is any expression of the child's views in the evidence before me.

14. As to the nature of the relationship of the child with each of the parents and other - there is not really much evidence about that, save to say that it has pleased the mother to allow the father to have unsupervised overnight time when the father has returned to visit the child.  It pleased the parties to have the child remain substantially with the mother after separation.  The evidence suggests that the child has a reasonable relationship with both parents.

15. Their willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent.  I cannot make any findings about that.  We can say from time the parties were living separately in Australia they arranged for the child to have time with each of them.  The father might be heard to say that the mother acted in a way which interfered with his time with the child when his visa expired.  It is too hard to make a finding about that question.

16. The likely effect of any changes in the child's circumstances, including separation from either of his or her parents.  I assume from the documents from the Immigration Department that if no order is made the child will be returned to the United States.  There have been findings made by a Court in the United States of America that give some indication about what the impact of that would be.  The Court in the United States dealing with the article 15 decision noted that the child spoke with an Australian accent, has lived in Australia effectively all her life and has settled in Australia. The mother gives evidence that, apart from the father, there are no close family connections known to the child in the United States. There is no evidence before me that the mother would return. It may be that she would but there is no evidence about the issue.  If the child’s return mean a separation from the mother, on the facts of the case that would be unacceptable. 

17. Practical difficulty and expense of the child spending time with and communicating with a parent.  Their honours are evenly shared there.  Parents who choose to live on opposite sides of the globe involve a child in substantial difficulty and expense to spend time.  Not so bad when the child is older and can travel more easily, not good when the child is young. 

18. The capacity of each parent.  There is not really any evidence that would enable a decision to be made about that issue.  As I say, the mother has been content to let the father have the child overnight when he has come back and visited. She must think he is a capable parent.  The father must think the mother is capable because he left the child substantially in her care when they separated. 

19. As to the maturity, sex, lifestyle and background of the child.  The critical thing I guess is the child's young age.  The child is not an Aboriginal or a Torres Strait Islander. 

20. As to the attitudes of the child and the responsibilities of parenthood demonstrated by the parents, I cannot make any findings about. The parties have arranged to live a long way apart and that does not seem to be very child focussed. The other aspects of the child's care seem to have been addressed.  There is no complaint made about her care.

21. There is no evidence of any family violence affecting the child or somebody else and no evidence of a family violence order. 

22. Those are the matters I am to take into account.  If the Court is to make an order that the parties have shared parental responsibility - and there is a presumption that it would - then the Court is to consider with a view to ordering equal shared time and if it does not order that, substantial and significant time between the parents.  The presumption can be rebutted in interim proceedings where it is not in the best interests of a child.  Even when the presumption is rebutted, the Court is to consider those things in any event.  It is not practicable, it is trite to say, to have the child spending equal time with each of the parents.  Neither of the parties proposes such a thing and that is relevant because these are civil proceedings.  As to substantial and significant time, the problem with that is where the parties live.  There is a definition of "substantial and significant time" and whatever it means it does not mean the odd trip to see one parent in school holidays.

23. On the proposals of the parties, as far as I know, it is not practicable for the child to have substantial and significant time or equal shared time with each parent. 

24. The critical thing is that if an order is made the child remains with the person who has been her primary caregiver.  If an order is not made, then on the face of it the child is separated from the primary caregiver.  In those circumstances, it is appropriate to make the orders sought.

25. The mother made an application for orders predicated or built around the child travelling to the United States once a year.  She is a bit coy about delivering on that without the father putting something in writing to acknowledge that to be an acceptable arrangement.  I suppose the mother is concerned that the father might retain the child in the United States. In any event there is nothing in the father's case today that suggests he can facilitate such an arrangement. I cannot just make an order in the ether. The father would need to seek an order that he spend time with the child. I have suggested to the parties that what I might do is make an order that arrangements for the child to spend time with the father in the United States would be the subject of written agreement between the parties.  That way there is no risk of the child being available and the father not or the child being embarrassed by some interruption in an arrangement made if she does travel back to Australia.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  25 September 2008