SONY & TEDJA

[2016] FCCA 2069

FEDERAL CIRCUIT COURT OF AUSTRALIA

SONY & TEDJA [2016] FCCA 2069

Catchwords:
FAMILY LAW – Parenting – Father’s Application to set aside an Airport Watch List preventing the removal of the parties’ two children from Australia – where the Father’s proposed overseas travel is to allow the children to spend time with extended paternal family including the aging paternal grandmother in (country omitted) – where the Mother has concerns the Father will not return with the children.

HELD – Application dismissed – the risk of the Father not returning with the children to Australia if allowed to travel to (country omitted) outweighs the benefit of the children visiting the extended paternal family – no order as to costs.

Legislation:

Family Law Act 1975 (Cth): ss.117(1), 117(2), 117(2A)

Applicant: MR TEDJA

Respondent: MS SONY

File Number: MLC 7099 of 2012

Judgment of: Judge Bender

Hearing date: 27 July 2016

Date of Last Submission: 27 July 2016

Delivered at: Melbourne

Delivered on: 27 July 2016

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Dr Parker

Solicitors for the Respondent: Women’s Legal Service Victoria

ORDERS

1. The Initiating Application of the Father filed 3 June 2016 be dismissed and the matter be removed from the pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7099 of 2012

MR TEDJA

Applicant

And

MS SONY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

Introduction

1. This is the Father’s Application to set aside Orders (1), (2) and (3) of the Orders made 27 August 2012 which placed the parties’ children X born (omitted) 2001 (“Y”) and Y born (omitted) 2006 (“X”) on the Airport Watch List.

2. The Father states the reason for his Application is that his mother is turning 75 years of age on 5 August 2016. He wants the opportunity for he, Y and X to travel to (country omitted) for nine days to be able to attend family celebrations, to meet with his sister who will be travelling from (country omitted) and to meet approximately 80 relatives including cousins and other various family members during that stay.

3. It is the Father’s evidence that whilst he will return to (country omitted) when he retires, at this time he is committed to he, Y and X living in Australia. 

4. It is the Father’s evidence that the education system in Australia is superior to that of (country omitted). The boys and in particular Y appear to be very smart children. It is for that reason the Father is committed to both Y and X completing their education in Australia. It is his evidence that when Y and X are adults they can make their own mind up about where they live in the long term.

5. It is the Father’s evidence that he has very recently obtained full-time employment in Australia which started just a couple of weeks ago.

6. The Father states that the concern of the Mother that he would not return to Australia with Y and X in all these circumstances is without merit. 

7. The Mother is adamantly opposed to the lifting of the Airport Watch List Order.

8. It is submitted on behalf of the Mother that this Court can have no confidence that the Father would return to Australia with Y and X if permitted to leave the country. 

9. It is submitted on behalf of the Mother that the history of litigation before this Court demonstrates the Father has very little respect for the orders of this Court. It is the Mother’s submission that the Father has continuously maintained his view that it is orders that are made in (country omitted) that are binding on he, Y and X rather than the orders of this country. The Mother drew the Court’s attention in particular to the Father’s litigation in relation to the granting of the parties’ divorce by this Court in 2014, which the Father pursued all the way to the High Court as evidence of his views in this regard.

10. The Mother referred the Court to paragraphs (4) to (8) of the Father’s Affidavit sworn 3 June 2016.

11. In paragraph (4) of the Father’s Affidavit he deposes to the parties’ marriage ending because of the divorce that was granted in (country omitted) despite three decisions of this Court to the contrary. 

12. In paragraph (5) of his Affidavit the Father deposes to he, the mother and the children being (country omitted) nationals and subject to (country omitted) civil, criminal and other laws, regardless of the status of their residency and regardless of any Order by any Court of the Commonwealth of Australia. 

13. In paragraphs (6) and (7) of his Affidavit the Father deposes that the (country omitted) legal system applies to (country omitted) nationals regardless of their residence and location and states “the civil status of both litigants and the children including divorce status and custody rights are final”.

14. In paragraph (8) the Father deposes that this Court is fully aware of this status because he has provided copies of the various documents purporting to represent the decisions made in the (country omitted) Courts to this Court.

15. The Mother also referred the Court to paragraph (9) of the Father’s Affidavit wherein he deposes to Australian government agencies being aware of the binding civil status of the (country omitted) court orders

16. It is the Mother’s evidence that in all the circumstances the Father does not accept that this Court has jurisdiction in relation to he, Y and X as residents of this country and rather, it is the (country omitted) Orders which bind him and his sons.

17. It is the Mother’s concern that if the Father is allowed to travel to (country omitted) with Y and X and he decided to remain there with Y and X she would have no capacity to pursue their return to Australia. 

18. It has been properly noted by Counsel for the Mother that (country omitted) is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. 

19. It is the Mother’s further evidence that there are existing orders in (country omitted) giving the Father full custody of Y and X.

20. It is the Mother’s Evidence that she lacks the financial resources to travel to (country omitted) and that if the Father decides, having arrived in (country omitted), that he did not want to return with Y and X, there would be very little she could do about it.

21. In his submission to the Court, the Father was most passionate when discussing his desire for Y and X to grow up in Australia.  He indicated to the Court that he and Y, who is a very good student, have had many discussions about the benefits of Y completing his education in Australia.

22. The Father stresses that both Y and X would love an opportunity to travel to (country omitted) and both are very annoyed that their mother is not allowing them to do so. 

23. In determining applications of this type the ultimate determination must be what is in the best interest of the children. In this particular instance the risk of the Father not returning to Australia with Y and X must be balanced against the benefits of them being permitted to travel. 

24. When all the evidence is considered and in particular the Father’s own evidence contained both in his Affidavit sworn 3 June 2016 and in the previous matters that have been before this Court, I am left in little doubt that the Father does not believe himself bound by any orders of this Court, including any Order that I could make that would require his return to Australia with Y and X, whether that be on 13 August 2016 or some later date.

25. Despite the Father’s protestations that he intends Y and X to complete their education in Australia, he concedes he wishes to live in that country. The Father owns no real estate in Australia and whilst he has recently obtained employment, it is very low paid. The Father’s family are in (country omitted) and it is clear that he has very little connection to Australia.

26. Accordingly, I believe there is a genuine risk that the Father would not return to Australia with Y and X if allowed to travel to (country omitted) at this time. 

27. It is therefore my finding that in all the circumstances it is in Y and X’s best interests that I not grant the application made by the Father this day. Accordingly the Airport Watch List Order dated 27 August 2012 preventing the removal of Y and X from Australia will remain in place.

Costs

1. There is an Application made today on behalf of the Mother that the Father pay her costs of today’s proceedings. 

2. Section 117(1) of the Family Law Act 1975 (“the Act”) provides that subject to subsection (2) each party to proceedings under the Act shall bear their own costs.

3. Section 117(2) of the Act allows the Court a discretion to make Orders that one party bear the costs of the other. In determining whether such an order should be made the Court must have reference to the factors outlined in section 117(2A).

4. The financial circumstances of both parties are quite poor.  The Mother is in receipt of social security and until very recently the Father too was in receipt of social security.

5. The Father has recently obtained employment through the (employer omitted) . It is the Father’s evidence however that this position pays not much more than he would receive under the Newstart Allowance. 

6. It is submitted on behalf of the Mother that when we look at the outcomes of these proceedings, the Father has been wholly unsuccessful.

7. It is further submitted on behalf of the Mother that I need also to look at the history of litigation before this Court and in particular what has been termed the Father’s “unmeritorious” applications in relation to the parties’ divorce which resulted in previous costs orders being made against the Father, all of which remain unpaid.

8. The difficulty with an application for the removal or otherwise of a Airport Watch List Order is that the Applicant is either successful or not.  There is no middle ground. 

9. Unlike the Father’s previous applications, I am not persuaded that this Application was unmeritorious. It was not brought in circumstances where there was absolutely no possibility of success. 

10. Y and X have been living in the Father’s primary care since 2014.  The paternal grandmother is turning 75.  There is a genuine reason for the Father wanting to travel to (country omitted) and whilst I could not be persuaded that it was in the best interests for Y and X to make the Orders the Father sought, his is not an application which could be seen to have been brought maliciously or inappropriately.

11. Further, the Response filed by the Mother in this matter made no reference to the Father’s Application being opposed. Rather, the orders sought by the Mother in her Response were that the Father’s Application be stayed until the outstanding costs owed by the Father to the Mother are paid. From the Response filed by the Mother, the Father could properly have concluded it was not his travel the Mother was opposing, but rather the non-payment of costs that was the issue. 

12. Counsel for the Mother today sought leave to file an Affidavit sworn by the Mother. Whilst I did not grant leave for that Affidavit to be filed, it became apparent from the Mother’s Counsel’s submissions that the Mother was opposing the Father’s Application to have the Watch List Order removed. I therefore made the decision to proceed with the substantive application.

13. I accept that the Affidavit that the Wife sought to rely on today was the first time the Father had brought to his attention that the Mother was opposing his substantive application.

14. The Father has the primary care of Y and X and because of the circumstances of the mother he bears the financial responsibility for their care. 

15. In all these circumstances, I am not satisfied that this is a matter in which I should depart from section 117(1) of the Act and I accordingly make no orders for costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 11 August 2016