SEFU & GYASI
[2010] FMCAfam 1004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEFU & GYASI | [2010] FMCAfam 1004 |
| FAMILY LAW – CHILDREN – Interim orders – best interests of the child – whether orders should be made that the child spends time with the father overnight during the school holidays – overseas travel – whether father should be permitted to take the child out of Australia for a holiday in [E]. PRACTICE & PROCEDURE – No necessity for a Case Outline Document for an Interim hearing in the Federal Magistrates Court. |
| Evidence Act 1995 (Cth), s.48 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65Y, 111B Federal Magistrates Act 1999 (Cth), Sch. 1, Part 1 Federal Magistrates Court Rules 2001 |
| Weedon & Keen [2010] FMCAfam 555 Goode & Goode (2006) FLC 93-286 Mancini & Kendling [2010] FMCAfam 623 Line & Line (1997) FLC 92-729 Kuebler & Kuebler (1978) FLC 90-434 |
| Applicant: | MR SEFU |
| Respondent: | MS GYASI |
| File Number: | SYC 1263 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 September 2010 |
| Date of Last Submission: | 6 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Bielli |
| Solicitors for the Applicant: | Campbelltown City Lawyers |
| Solicitor for the Respondent: | Ms Hastie |
| Solicitors for the Respondent: | Adams & Partners |
ORDERS UNTIL FURTHER ORDER
The Respondent Mother is to have parental responsibility for the child [X] born 1997.
In the event that the child suffers any illness or injury requiring hospital treatment or attendance at a medical specialist the Mother must inform the Father as soon as is reasonably practicable and in any event within TWENTY FOUR (24) hours.
The said child [X] is to live with the Mother.
The child is to spend time with the Father as follows:
(a)Each weekend during school term time from 5:00pm to 10:00pm each Saturday and from 8:00am to 10:00pm each Sunday with the exception of Mother’s Day in each year;
(b)During the School holidays from 9:00am on Saturday 25 September 2010 until 7:00pm on Tuesday 28 September 2010;
(c)From 9:00am on Saturday 9 April 2011 to 7:00pm on Wednesday 13 April 2011;
(d)From 9:00am on Saturday 2 July 2011 to 7:00pm on Thursday 7 July 2011;
(e)From 9:00am on Saturday 24 September 2011 to 7:00pm on Friday 30 September 2011;
(f)For half of all mid-year school holidays from 2013 and subsequently commencing at 9:00am on the first Saturday after school term finishes and concluding at 7:00pm on the following Saturday;
(g)For the December/January school holidays in 2011 and each alternate year thereafter from 9:00am on the first Saturday after school term finishes until the 7:00pm second Saturday in January;
(h)For the December/January school holidays in 2012 and each alternate year thereafter from 9:00am on the second Saturday in January until 7:00pm on the day after Australia Day in January;
(i)For the purposes of Christmas and other holy days in the religious calendar the said child will spend that time with whichever parent he is otherwise spending time;
(j)From 8:00am until 10:00pm on Father’s Day in each year;
(k)Notwithstanding any earlier order the child is to spend the Mother’s birthday in each year with the Mother;
(l)Between 4:00pm and 7:00pm on the child’s birthday in each year; and
(m)Between 4:00pm and 7:00pm on the Father’s birthday in each year.
For the purposes of Order (4) above the Father is to collect the child from the Mother’s residence and return the child to the Mother’s residence.
The Father may communicate with the child by telephone between the hours of 6:00pm and 8:00pm each Monday, Wednesday and Friday.
When the child is spending time with the Father the Mother may communicate with the child between the hours of 6:00pm and 8:00pm each Monday, Wednesday and Friday.
Each party is to notify the other of:
(a)Any major medical emergency affecting the child whilst he is in that party’s care;
(b)Any change of address or telephone number.
The Mother must authorise the Principal of the school attended by the child to forward to the Father at his expense copies of all school reports, newsletters, advice about school photographs and other information usually provided to parents of children attending that school.
The parties are restrained from taking or attempting to take the child [X] born 1997 out of the Commonwealth of Australia.
All earlier parenting orders are discharged.
IT IS NOTED that publication of this judgment under the pseudonym Sefu & Gyasi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1263 of 2010
| MR SEFU |
Applicant
And
| MS GYASI |
Respondent
REASONS FOR JUDGMENT
Application
The Father in this case is applying for interim parenting orders in relation to the parties’ only son, [X], who was born in 1997, according to the Father’s application, or in 1996, according to the Mother’s response. The child is now 13 years old, of the Father is right, or 14 years old, if the Mother is right. However, the Mother’s affidavit sworn 29th April 2010 states that the child “was born in [E] in 1997”.[1] The date of 1997 appears more likely to be correct.
[1] Mother’s affidavit at paragraph [4]
The Father is currently spending time with his son as a result of interim orders made by consent on 24th May 2010. However, those orders do not allow for overnight time, which the Father seeks. Essentially, the Father seeks orders:
a)Allowing the child to spend time with him overnight during the school holidays; and
b)Permitting him to take the child out of Australia on a holiday to [E] over the Christmas/New Year school holidays; and
c)Spending an extra hour with the child each day on the weekend.
The Mother opposes these orders.
Background
The parties were born in [E]. The Father was born in 1963 and the Mother was born in 1970. They were married in 1996 and their only child, [X], was born in 1997.
The family moved to Australia in 2002 and have lived in Australia ever since.
The parties separated in 2005 and were divorced in 2010. The child remained living with the Mother.
The Father moved to South West New South Wales, where he is working [in a trade]. The Mother remains living in Sydney with the child.
Since the parties separated, the Father has been travelling to Sydney and seeing the child every weekend. He returns the child to the Mother’s home on Saturday and Sunday nights.
Issues
The Father believes that the lack of overnight time with his son is detrimental to the child because it does not allow the Father and son to build up a constructive relationship. He notes that the Mother’s proposals do not allow for any overnight contact at all, either on an interim or on a final basis. He considers that it would be beneficial for the child to spend time with him in South West New South Wales, where he now lives. He denies the Mother’s allegations of inappropriate behaviour.
The Father also submits that it would be if benefit to the child to travel with him to [E], the land of their birth. The child’s extended family still live in [E].
It is the Mother’s position that there should be no change to arrangements that have worked well for the child until now. She refers to family violence and emotional abuse which she says was perpetrated by the Father, and she holds fears for the child’s safety.
The Mother opposes any order permitting the child to travel overseas. [E] is not a party to the Hague Convention on International Child Abduction and she fears that the Father might not return the child to Australia. The Father still has ties to [E].
Evidence
The Father relies on the following affidavits:
a)His affidavit sworn 1st March 2010;
b)His affidavit sworn 27th July 2010;
c)His affidavit sworn 30th August 2010;
d)The affidavit of the Applicant’s Mother, Ms N, sworn 12th July 2010;
e)The affidavit of the Father’s sister, Ms S, sworn 12th July 2010;
f)An affidavit by his solicitor sworn 1st September 2010, annexing a copy of a journal article by the Hon. Michael Kirby AC CMD entitled “Children caught in conflict – the Child Abduction Convention and Australia”; and
g)A further affidavit by his solicitor, also sworn 1st September 2010, annexing copies of:
i)Agreement Between the Government of Australia and the Government of [E] on Protecting the Welfare of Children; and
ii)A “sample list of terrorist incidents around the world from 2010 to 2008”.
The Mother relies on the following affidavits:
a)Her affidavit sworn 29th April 2010; and
b)An affidavit by her solicitor sworn on the 18th August 2010 annexing a Travel Advice for [E] from the Australian Department of Foreign Affairs and Trade.
The Father’s evidence is that it is very difficult to communicate with his former wife, who “simply refuses to speak to (him) in a civilised manner”.[2]
[2] Affidavit of Mr Sefu sworn 1.3.2010 at paragraph [7]
He had to buy a mobile phone for his son and he makes arrangements to see his son directly with him. The son then tells the Mother.[3]
[3] Ibid at [14]
For the last five years the Father has been seeing his son every weekend. He drives to Sydney and picks up the child about 5:00pm, returning him to the Mother’s home about 10:00pm. He collects the child on the Sunday at about 8:00am and returns him about 10:00pm. The Father stays overnight with friends in Sydney on the Saturday.[4]
[4] Ibid at [15] and [16]
The Father denies the allegations against him made by the Mother in her affidavit of 29th April 2010.[5]
[5] Affidavit of Mr Sefu sworn 27.7.2010
The Father deposes that he instructed to amend the orders sought so that there would be a gradual build-up toward the child spending seven days at a time with him during the school holidays. Initially he suggests starting with a period of four days.[6]
[6] Ibid at paragraph [9]
The Father also deposes that he has retrained in a trade and has become very successful. He has become qualified in that trade and has won a number of awards.[7]
[7] Ibid at [26]-[30]
It is the Father’s evidence that he lives in a one bedroom apartment in South West New South Wales. If he were allowed to have his son stay with him he would give him his bedroom and he would sleep on a sofa bed in the lounge room. He would also re-arrange his work schedule and use his annual leave to spend quality time with his son.[8]
[8] Ibid at [35]-[39]
The Father goes on to state that he would not wish to throw away his successful career in South West New South Wales by not returning the child if he were permitted to take him on a holiday to [E].
The Father also referred to the travel warning in relation to [E] annexed to the Wife’s solicitor’s affidavit. He expressed the view that the Department of Foreign Affairs and Trade has taken a “most conservative view of everyday life in [E].”[9] Essentially, he states that all he wishes to do is take the child to [E] to see his family.[10]
[9] Affidavit of Mr Sefu sworn 30.8.2010 at paragraph [3]
[10] Ibid at [15]
The Father’s mother, Ms N, deposed in her affidavit that the incident described by the Mother in her affidavit, where she described the father as being in the habit of playing with his genitals under his boxer shorts, as never having taken place.[11] She then goes in her affidavit, at some length, to describe her hurt and outrage at this allegation.[12]
[11] Affidavit of Ms N sworn 12.7.2010 at paragraph [8]
[12] Ibid at [4], [5] (there are two paragraphs numbered [5]), [8], [10], [11], and [13]
Ms N speculates as to why the Mother would make such an allegation.[13]
[13] Ibid at [9]
The Father’s sister, Ms S, in her affidavit sworn 12th July 2010, also denies this allegation[14] and also expresses her shock and anger at this allegation[15].
[14] At [5]
[15] At [4] and [6]
The Applicant’s solicitor, in two affidavits, each sworn on 1st September 2010, annexed copies of the following documents:
a)Agreement Between the Government of Australia and the Government of [E] on protecting the Welfare of Children;
b)A list of terrorist incidents downloaded from Wikipedia; and
c)A copy of an Article from the Australian Family Lawyer by the Hon. Michael Kirby.
It is not immediately clear why it was considered necessary to annex these documents to affidavits. It would seem s.48 of the Evidence Act would permit them to be tendered in their own right. Annexing them to an affidavit by the Applicant’s solicitor does not make them any more admissible or give them any more weight.
The Mother, in her affidavit sworn 29th April 2010, deposes that she was the primary carer for their son and asserts that the Father would not assist in changing the child’s nappies.[16] She complained that the Father would take the child out for the day and not bring him back until 10:30 or 11:00pm, which was too late if the child had to go to school the next day.[17]
[16] At paragraphs [8], [9] and [14]
[17] Affidavit of Ms Gyasi sworn 29.4.2010 at [30]
The Mother also deposed that during their cohabitation the Father would verbally abuse her and make threats of physical violence towards the child.[18] She claimed that he would fondle the child’s genitals when the child was little. She stated that on one occasion in about 1998 the father threw the child across the room.[19] The Father would also make derogatory remarks about her and about women in general.
[18] Ibid at [39]-[40]
[19] Ibid at [50]
The Mother expressed fears in her affidavit that the Father would take the child to [E] and not return him to Australia.[20]
[20] Ibid at [37]
The Mother’s solicitor sworn an affidavit on 18th August 2010 to which she annexed a travel advice about [E] from the Smart Traveller Website of the Australian Department of Foreign Affairs and Trade. Again, it is not clear why this document needed to be annexed to an affidavit.
Submissions
The Father’s submissions are contained in an Outline of Case Document, subtitled “Magistrate’s Copy”.[21]
[21] The title of a Federal Magistrate is “Federal Magistrate”, not “Magistrate” (Federal Magistrates Act 1999, Schedule 1, Part 1, 2(2)
Essentially the Father submits that:
a)It is in the child’s best interests to build up a relationship with his father by spending overnight time at his father’s home;
b)The allegations by the Mother about the Father’s behaviour are not supported by any hard evidence;
c)There is no evidence that the child does not wish too spend time with his father;
d)Both parents have a good relationship with the child;
e)The Mother has not encouraged the formation of a close relationship between the Father and the child;
f)The Father has a basic right to spend quality time with his son;
g)The proposed orders will not have any detrimental effect upon the child;
h)The Mother will remain the child’s primary carer;
i)The Father has to do a 400 kilometre round trip between South West New South Wales and Sydney to see his son;
j)The Father would make arrangements to provide proper accommodation for the child;
k)The family unit is of paramount importance to people of a religious faith, including the Father;
l)Neither parent is failing in his or her responsibilities towards the child;
m)The Father denies the Mother’s allegations of domestic violence;
n)The Father cannot afford to continue this litigation any further;
o)The Father denies that he would intend to travel to [E] with the child and not return him to Australia;
p)[E] is a signatory to the Protection of Children Convention which would provide for recognition and enforcement of an Australian Court order in [E] if the father were not to return the child;
q)The Agreement between Australia and [E] about cooperation to protect the welfare of children, whilst outside the provisions of the Hague Convention on International Child Abduction, would provide some safeguards sufficient to satisfy the Court that the child would return to Australia;
r)The Father has ties to the Australian community;
s)The Father would provide the sum of $5,000.00 as surety to help ensure the return of the child to Australia; and
t)The Mother has provided no evidence to show why the Father should not be allowed to travel to Europe with his son.
The Father’s solicitor referred the Court to the decisions of Monahan FM in Weedon & Keen[22], the Full Court of the Family Court in Goode & Goode[23], a recent decision of mine known as Mancini & Kendling[24], the decision of the Full Court of the Family Court in Line & Line[25], and the decision of the Full Court in Kuebler & Kuebler[26].
[22] [2010] FMCAfam 555
[23] (2006) FLC 93-286
[24] [2010] FMCAfam 623
[25] (1997) FLC 92-729
[26] (1978) FLC 90-434
The Mother’s solicitor did not prepare an Outline of Case Document, nor was there any necessity for her to do so. The Father’s solicitor sought to criticise his opponent for not preparing a case outline, but this criticism was ill-founded.
This was an interim hearing. There is nothing in the Federal Magistrates Court Rules or in any Practice Direction that requires parties to prepare and file a Case Outline Document in an interim hearing. A minute of proposed orders would be useful, especially if the orders sought were different from those set out in an application or response. A short chronology will often be helpful, where dates are important.
What parties should consider doing is to hand up photocopies of any case relied upon, as the Mother’s solicitor did do. Obviously, there is no need to extract a copy of any Federal Magistrates Court decision, as these decisions are readily available from the Court’s Judgments Database. In those circumstances, a list of the cases relied upon, together with their citations, would suffice.
That said, it was submitted on behalf of the Mother that the arrangements had been in place for between two and five years and did not require any change. The Mother has been the child’s primary carer the entire time. The Father has been responsible for family violence and emotional abuse and has not cared for the child’s interests in other ways, such as allowing him access to inappropriate computer games, those classified MA 15 +.
The Mother submits that there should be no change to the orders.
The Mother opposes the Father’s proposal to take the child out if Australia to visit [E]. The reasons for her objections are:
a)[E] is not a signatory to the Hague Convention (Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980);
b)There is a travel warning for [E] issued by the Department of Foreign Affairs and Trade;
c)The amount of $5,000.00 offered as security is insufficient to persuade the Father to return or to add to a “fighting fund”; and
d)The Father could easily relocate to [E] as he still has family ties there and his skill in his trade could be used anywhere.
The Relevant Law
In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia.
The Full Court of the Family Court of Australia considered this question in Line & Line[27], and earlier in Kuebler & Kuebler[28]. Line & Line concerned an application by a mother to take a child out of Australia to the United States of America for a holiday. It was held that the Court must consider the degree of risk that the child will not be returned to Australia and whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
[27] supra
[28] supra
In this case, Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows that [E] is not a party to the Convention.
That, of course, is not the only matter for the Court’s consideration in this matter. As their Honours pointed out in Line, the Court must consider the purpose for providing a cash security:
(a)to provide a sum which will realistically entice the person removing the children to return; and
(b)to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.[29]
[29] (1997) FLC 92-729 at [4.48]
The Court must also consider, when assessing the degree of risk that the departing parent may choose not to return such considerations as:
…the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).[30]
[30] (1997) FLC 92-729 at [4.49]
As to the Father’s proposals to spend overnight time with the child over the school holidays, the Court must consider that, in deciding whether to make a particular parenting order, it must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The primary considerations in determining what is in the child’s best interests are the benefit to the child in having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (s.60CC(2) of the Act).
Other considerations include any views expressed by the child, the nature of his relationship with each of his parents and other parents, including grandparents, the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and the likely effect of any changes in the child’s circumstances, including the likely effect on him of any separation from either of his parents or from any other child or other person with whom he has been living, as well as other matters (s.60CC(3)).
The Court must also consider whether the presumption in s.61DA applies, that equal shared parental responsibility is in the best interests of the child (Goode & Goode[31]).
[31] supra
Conclusions
This is an interim hearing. The evidence is untested and conflicting. What is clear is that the child is 13 or 14 years of age according to which parent’s evidence one accepts and has lived with his mother since the parties separated in 2005. He is in Year 7 at school. He has not spent any time with his father other than during the day.
There is no evidence to support the Mother’s claims of verbal abuse and domestic violence. There is no apprehended violence order in force, or any evidence that there has ever been such an order. It seems clear, though, that the parties had an acrimonious relationship before they separated and there is no direct communication between them.
In my view it would be of benefit to this boy to have a meaningful relationship with both parents. He lives with his mother and sees his father virtually every weekend, so it would appear that he has some relationship with him. However, he has never seen his father’s home or even the country town in which his father lives and works.
Whilst the Mother has deposed in her affidavit to violent and abuse behaviour by the Father in the past, there is no evidence of any such behaviour since the parties separated in 2005. I am satisfied that there is no unacceptable risk that the child will suffer from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
There is no evidence of any views expressed by the child. Certainly, there is nothing in the Mother’s affidavit to suggest that the boy is refusing to spend time with his father on weekends or exhibiting fear of him or hostility towards him.
The child appears to have a good relationship with each of his parents. His grandparents and most of his extended family are in [E] and he presumably has not seen them since he came to Australia in 2002. He has a maternal uncle and some cousins in Australia but there is no evidence of the strength of his relationship with them.
The Mother’s reluctance to permit the Father to have any overnight time with the child either now or at any time in the foreseeable future does not suggest a willingness to facilitate a close and continuing relationship between the child and his father.
By comparison, the Father is seeking orders that would continue the Mother’s role as primary caregiver.
The effect of the orders proposed by the Father would be that the child would be spending more time away from his mother and would stay the night at his father’s home. This would be a new experience for him, but he is 13 years of age and should be mature enough to adjust to this change quite quickly. The Father has suggested, quite sensibly, that the overnight time with the Father during the school holidays should start with just three days and four nights and slowly build up to a full week, over a period of more than a year. The only exception to this would be the Father’s plan to take the boy to [E] for nearly a month, from 27th December 2010 to 24th January 2011.
There does not seem to be any practical difficulty or great expense in the child spending a few days with his father in South West New South Wales during the school holidays. The Father drives from South West New South Wales to Sydney and back each weekend to spend time with him. He has deposed in his affidavit of 27th July 2010 that he can make arrangements to accommodate his son and to adjust his work schedule so that he can spend time with the child.
Each parent appears, on the evidence before the Court, to have the capacity to provide for the child’s needs. The child’s grandparents, both paternal and maternal, are in [E], and apparently have not seen him since the family immigrated to Australia in 2002.
The child concerned is a boy who was born in 1997 and is now 13 years of age. He was born in [E] and has lived in Australia since he was eight years old. He is of a religious faith, as is his father.
The child is not an Aboriginal or a Torres Strait Islander.
Each parent appears to take the responsibilities of parenthood seriously, although the Mother alleges that the Father has been violent in the past. She has also claimed that the Father has not given the child when he has taken him out or allowed him to wear a coat when it was cold.
The Mother has made allegations of family violence against the Father, which he denies. I am unable to make a finding of fact on the evidence before the Court.
There is no evidence of any family violence order in force.
The Father claims that he cannot afford to continue this litigation any further. Whether that is so or not, this is an interim hearing and the Court will make orders until further order.
Taking the above matters into consideration, it is difficult to see why the child should not spend some extended time at his father’s home during the school holidays. It makes sense that this should be phased in over a period of time, as he has never spent overnight time with his father or been away from his mother overnight since the parties separated over five years ago.
Surely it cannot be the case that this child would still only be seeing his father during the day when he is 17 years old. This does not seem to be in his best interests.
The Father is seeking an extension of time for the child to be in his company from 9:00pm, which the Mother proposes, until 10:00pm. The Mother’s reasons for not agreeing to this extension do not seem to be either clear or convincing.
In my view, the time should soon arrive when the child could spend the Saturday night in the company of his father, although the Father would need to make appropriate arrangements for accommodation.
The Father wants the parties to have equal shared parental responsibility for the child. The Mother, in her response, seeks a similar order.
This is impractical, in my view. On the Father’s own evidence, the Mother refuses to speak to him “in a civilised manner”.[32] The Father deposes in that same affidavit that:
At all times since separation, I have not been able to communicate with the Respondent Mother to discuss when and how I am going to spend time with [X].[33]
[32] Affidavit of Mr Sefu sworn 1.3.2010 at [7]
[33] Ibid at [13]
How then can the parties exercise equal shared parental responsibility if they have not spoken to each other for five years? I am not satisfied that it is in the child’s best interests for the parents to have equal shared parental responsibility. Parental responsibility should remain with the Mother, who is the primary caregiver.
Turning to the Father’s wish to take the child out of Australia from
27th December 2010 to 24th January 2011 for a holiday in [E], there are a number of reasons which make this proposal impractical and, in my view, not in the child’s best interests at this time.The Father would need the consent of the Mother, or a court order, in order to be able to take the child out of Australia (s.65Y). The Mother does not consent, and I am not persuaded that the Court should make an order.
It is conceded that [E] is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. True it is that Australia and [E] are parties to a bilateral agreement regarding Cooperation on Protecting the Welfare of Children, however, that agreement does not give access to the mechanism in the Hague Convention for a court order to bring about the return of a child to Australia. The objects of the bilateral agreement are set out in Article 1:
a)ensuring that the best interests of children are treated as of primary importance in matters relating to parents’ rights of custody and access to their children;
b)ensuring respect for the rights of children who are separated from one or both parents to maintain personal relations and direct access with both parents on a regular basis, except if it is contrary to a child’s best interests, as provided for in the United Nations Convention on the Rights of the Child;
c)ensuring respect for the rights of a parent who is separated from a child to maintain personal relations and direct access with the child on a regular basis as provided for in the United Nations Convention on the Rights of the Child;
d)assisting a child to recover from any harmful effects suffered in the removal of the child by a parent from the territory of one party to the territory of the other Party.
Clearly, if the Father were to take the child to [E] and not return him to Australia, the Mother would not be able to rely on the bilateral agreement to get him back to Australia. The best she could hope for would be to see him regularly if she were to visit him in [E].
Again, in the circumstances the security of $5,000.00 offered by the Father would appear to be quite inadequate either to entice the Father to return to Australia or to provision the mother left in Australia to take action and proceedings in Australia or in [E] in an endeavour to obtain the return of the child.
Both parties have substantial ties to [E]. Realistically, the likelihood of the Father abandoning his residence in Australia and the career he has built for himself in Australia is relatively low. He has made his home here, retrained in a trade and has achieved a great deal of success in that field. He is qualified in a trade and has won prizes for his work. He would think twice about abandoning a promising career in Australia in favour of starting afresh in [E].
The Court cannot ignore the travel warning issued by the Department of Foreign Affairs and Trade. No doubt the Father has no intention of engaging in any political agitation or visiting places that may attract terrorist incidents, but it is difficult to accept the Father’s assertion that:
Travelling to [E] is no less dangerous than me driving around Sydney.[34]
[34] Affidavit of Mr Sefu sworn 30.8.2010 at [19]
However, the main reason why the Father’s proposal to take the child for a lengthy holiday in [E] in December and January is inappropriate, in my view, is that it does not appear to provide the benefit to the child at this stage that the Father claims. The reverse would appear to be true.
The Father’s proposals have been formulated taking into account the fact that his son has not spent any overnight time with him (or away from his mother, presumably) since the parties separated in June 2005, over five years ago. The Father’s proposals for the child to spend school holiday time with him in South West New South Wales take that fact into account, as they provide for a graduated program of overnight contact, commencing with three nights in September 2010, four nights in April 2011, five nights in July 2011, six nights in September 2011 and then progressing to a full week in each school holiday after that.
However, the logical inconsistency of the father’s proposal can clearly be seen when it is considered that the second occasion when the child will spend overnight time with him would be in December 2010/January 2011, when the child would be with him, and away from his mother, for four weeks, from 27th December to 24th January. Then, the Father proposes to return to his graduated program by having the child stay with him in South West New South Wales for five days in April.
What, one may ask, is the point of a graduated program of overnight time when the second period goes from three nights in Australia to four weeks in [E], a country that the child has not seen since he left in August 2002, when he was five years old?
The proposed trip to [E] seems to be more in line with the wishes of the Father than the needs of the child. The Father has made preliminary arrangements to go to [E] in December and January. He can still go, but I am not prepared to permit him to take his son on this occasion. The question of overseas travel by this child is premature and will more appropriately be considered when the child is older and has spent considerably more time with his father than he has now.
However, I am of the view that this child should be able to spend some overnight time with the Father in the school holidays and orders will be made accordingly.
There are some orders that the Father seeks which have not been the subject of any argument or evidence at all. In his application he seeks an order that the child is not to leave New South Wales without the consent of the other party or the Court. No reason for that is given and I am not sure that it is necessary. For example, if the child were staying with the Father during the school holidays, the he would need the Mother’s permission to take him to Canberra for the day.
There is no need to make such an order on the evidence before the Court.
The Father’s proposed order about being reimbursed half of petrol expenses for travel between Sydney and South West New South Wales is not necessary, as it is dependant on an order sought by the mother that is not being made.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 16 September 2010
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