STATIVA & STATIVA
[2012] FMCAfam 809
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STATIVA & STATIVA | [2012] FMCAfam 809 |
| FAMILY LAW – Parenting orders – proceedings remitted for determining whether child can travel outside the Commonwealth of Australia for holidays accompanied by her mother – application acceded to. |
| Stativa & Stativa [2012] FamCAFC 51 |
| Applicant: | MR STATIVA |
| Respondent: | MS STATIVA |
| File Number: | MLC 9079 of 2009 |
| Judgment of: | Hartnett FM |
| Hearing date: | 2 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2012 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
THE COURT ORDERS THAT:
Notwithstanding the Airport Watch List orders numbered 10, 11 and 12 of the Orders made 18 August 2011, the Mother be permitted to take the child [X] born [in] 2008 out of the Commonwealth of Australia for the purposes of holidaying with the child’s grandparents in Romania. The Mother and child shall travel in the month of September 2012 if possible, and if not possible then in the months of September and October 2012 or October 2012. The Mother and child are permitted to be absent from Australia for a maximum period of three weeks and two days including the date of departure from Australia and return to Australia.
The Father forthwith do all necessary acts and things and sign all necessary documents to obtain a passport for the child. In the event that the Father fails to comply with this order within 3 days of a written request for him to do so by the mother then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court shall execute any necessary deed or instrument or document and/or do all necessary acts and things in the name of the Father to have a passport issued for the child.
Before her departure from the Commonwealth of Australia the Mother provide to the Father in written form details of the address at which she shall be residing with the child in Romania, that address being the home of the maternal grandparents of the child.
The Mother is, prior to her departure, to provide to the Father in written form a telephone number on which the Father can contact the child in Romania and the Father is at liberty to telephone the child each week or if he has the facilities to Skype the child on no more than two occasions in total and being at any reasonable time.
Upon the child returning to Australia she shall spend time with her Father, additional to that provided for in the Orders made 18 August 2011, and being a period of four consecutive nights commencing at 5pm on day one and concluding at 5pm on day five. Such time is not to occur within the first 24 hours after the child’s arrival back in Australia and is then to occur by agreement between the parties and within the first two months following the child’s arrival back in Australia. The Father is permitted to take the child to Adelaide for this time or part thereof.
The Airport Watch List Orders presently operative are to be suspended in their operation for the relevant period of travel undertaken by the child and the Mother pursuant to these Orders.
The Mother is as soon as practicable to provide the Father with copies of the airline tickets for herself and the child.
The Mother provide security for the return of the child to Australia by depositing with the Registrar of the Federal Magistrates Court (under the account name ‘Federal Magistrates Court of Australia - Administered Receipts Account’, BSB [omitted]Account Number [omitted]) the sum of $15,000 to be held upon trust pending further Order of the Court or proof of the return of the child to Australia by the Mother pursuant to these Orders such proof being the child’s stamped passport and 7 days’ notice given to the Father. Should the Mother fail to return the child to Australia pursuant to these Orders the Father have leave forthwith to apply to the Court for a payment from the Registrar’s account of the whole or part of the said sum of $15,000 and sale of the mother’s motor vehicle until her return from overseas to cover all necessary airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the Father to have the said child returned to Australia pursuant to these Orders.
The Mother be restrained from selling, encumbering, transferring or in any way dealing with her motor vehicle registration number [omitted] save leaving it on or at the front of her residential address during her absence overseas.
The Mother, as soon as practicable, notify the Court of the dates of travel in order for the Court to notify the Australian Federal Police that the Airport Watch List Orders are suspended for the relevant period.
The Mother is at liberty to apply to make application for travel overseas for the child in future years. Any such application filed in the next 24 months is to be listed before Hartnett FM.
IT IS NOTED that publication of this judgment under the pseudonym Stativa & Stativa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9079 of 2009
| MR STATIVA |
Applicant
And
| MS STATIVA |
Respondent
REASONS FOR JUDGMENT
This application comes before the Court on the remittal of the proceedings to this Court from the Family Court of Australia pursuant to a judgment on appeal of Coleman J delivered 30 March 2012 and reported at Stativa & Stativa [2012] FamCAFC 51. Coleman J set aside orders numbered 13, 14 and 15 of the orders of the Federal Magistrates Court made by Whelan FM on 18 August 2011. The orders set aside permitted the mother to take the child of the parties [X] born [in] 2008 (‘the child’) out of the Commonwealth of Australia for a period not exceeding four weeks in 2012. This issue was the only part of the appeal which was allowed, thus leaving in place the other parental orders made 18 August 2011 which included that the mother have sole parental responsibility for the child [X] and that she live with the mother, and that the child spend time with the father, as set out in order numbered 4 of those orders, with such time being suspended as set out in order numbered 5 of those orders.
For the purpose of this proceeding, the applicant mother relied upon an affidavit affirmed by her on 20 April 2012, together with exhibits tendered this day, and the respondent father relied upon an affidavit sworn by him on 23 July 2012, together with a document entitled appellant’s summary of arguments, which was filed by him on 25 July 2012. Both the applicant and respondent are litigants in person.
In his reasons of 30 March 2012, Coleman J said, as to the decision in the lower Court and the father’s ground of appeal that error was occasioned by the learned Federal Magistrate in permitting the mother to remove the child from the Commonwealth of Australia, the following (at paragraph 44):
“The issue was not revisited during preliminary exchanges during which the learned Federal Magistrate was endeavouring to identify the areas in dispute. The evidence then began. Neither party has referred this Court to oral or other evidence, in support of, or in opposition to the mother being permitted to remove the child from the Commonwealth which arose during the course of the trial. The Court has not found for itself any evidence at the trial, either by way of evidence in chief from the mother, or cross-examination upon the evidence of the father in relation to the child’s removal from the Commonwealth. Beyond stating her desire to do so, and its basis, and refuting any suggestion that she would not return the child if permitted to remove her, the mother did not adduce evidence in support of the removal of the child from the Commonwealth.”
And at paragraph 45:
“With all due respect to the learned Federal Magistrate, and accepting that the issue was not agitated before her in the way in which it has been before this Court, and that it appears to have been very much ancillary to the broader issues requiring determination, the Court cannot reject the substance of the father’s submissions. Other than to the extent referred to earlier in these Reasons [par 30], the learned Federal Magistrate did not reveal the process of reasoning which led her to make the orders she did permitting the mother to remove the child from the Commonwealth. Nor, in the context of her determination of other aspects of the proceedings did the learned Federal Magistrate record the findings of fact in reliance upon which an order permitting the mother to remove the child from the jurisdiction might be based (see Pettitt v Dunkley [1971] 1 NSWLR 376, Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191).”
And at paragraph 46:
“Regrettably, whilst the Court cannot say, particularly having regard to the way in which the case was presented before the subordinate court, that the learned Federal Magistrate could not have permitted the mother to have removed the child from the Commonwealth, in the terms in which she did, her Honour’s Reasons do not reveal that the issue was adequately considered. As it cannot be concluded that proper consideration of this issue could not have produced a different outcome, this challenge is entitled to succeed.”
Statements of fact contained in those reasons are findings of fact on the balance of probabilities.
The mother was born in Romania; the father in Poland. The father has lived in Australia since he was 10 years of age. [In] 2004, the mother came to Australia. She has thus lived in this country in excess of eight years and obtained Australian citizenship in 2007. Prior to her arrival in Australia, the parties had married [in] 2002 in a civil ceremony in Bucharest, Romania. Subsequently the parties participated in a religious ceremony in Brasov, Romania [in] 2003. The mother relocated to Adelaide in February 2004 to where the father was residing. Shortly thereafter, the mother left Adelaide for Melbourne where she commenced to work [P]. The father continued to reside in Adelaide and the parties visited each other regularly, and in early 2005 they signed the lease on a property at [address omitted] in the State of Victoria. The father continued to live for a time in Adelaide but would visit the mother in Melbourne on a regular basis. In 2007 both parties were residing in Melbourne and in 2008 their daughter, [X], was born. Their separation occurred in September 2009 when the mother left the former matrimonial home, together with the child, and took up other rental accommodation. Since that time, [X] has resided primarily with her mother and spent time with her father.
This application is brought by the mother in the face of opposition by the father for the mother to take [X] for a four week trip to Romania in September 2012 (subject now to flight availability) to enable the child to visit her maternal grandparents with whom she has a good relationship. The orders as sought by the mother appear in paragraph 46 to 51 inclusive of her affidavit. They also include that she be granted permission to travel to Romania with [X] to visit the maternal grandparents at a minimum of each two calendar years. The mother proposes orders by way of make-up time between [X] and her father as made by Whelan FM but, for reasons which I shall detail hereafter, I do not propose to make those orders in the same terms. The orders sought by the father appear at the conclusion of his affidavit under the heading “Orders sought by the father”. In essence, the father seeks that [X]’s name remain on the Airport Watch List. I note that he does not need an order to that effect, that already being the case pursuant to the orders made by Whelan FM on 18 August 2011. What he seeks however, is that there be no period of time during which the operation of those orders might be suspended to enable the mother to travel with the child to Romania. He thus seeks the dismissal of the mother’s application.
Both the father and mother were litigants in person. Each cross-examined the other, and both relied upon their affidavit evidence in addition to that evidence tendered as an exhibit in the proceedings.
The mother’s case is that [X]’s best interests are served by allowing her to travel with her mother to Romania and spend time with her maternal grandparents with whom she has spent some considerable time in her life to date. The mother’s parents visited Australia and the family in June 2009. They remained in the country until early 2011 when they returned to Romania to reside.
In September 2009 and whilst in Australia, the mother’s father suffered a serious stroke. The father takes no issue with this fact. As a consequence of that, the mother’s father spent some four weeks in hospital, before he was transferred to a rehabilitation unit for six weeks of rehabilitation. Thereafter, he walked with the assistance of a walking aid. The mother sought to rely on, in evidence, a medical certificate, translated and certified, from a general practitioner in Romania as to her father’s current state of health.
The father objected to the mother’s reliance on such evidence, saying that it was not reliable and that it should be given no weight. The father was critical of the mother not obtaining medical evidence as to her father’s medical condition, being evidence obtained from a doctor in Melbourne despite him not having been treated here for over 12 months. I give no weight though to the evidence put before me by the mother, given the form it is in and the lack of opportunity for the father to cross-examine the Romanian general practitioner.
I accept however, the unchallenged evidence of the mother that her father suffered a serious stroke in Australia, which required some 10 weeks of hospitalisation and rehabilitation. I accept the mother’s evidence that her father is wheelchair bound now and that, for the period after the suffering of his stroke, he could not walk, and nor can he now, without assistance. Although the father challenged this, and said that he observed his father-in-law to get out of a car at the end of 2010 unassisted, he subsequently gave contradictory evidence that he observed him to walk with the assistance of his walking aid.
In respect of her father’s health, I accept the mother’s evidence that for the period in which her parents resided with her in Melbourne, she had, in her motor vehicle at all times, a wheelchair to assist in the transportation of her father and that her father required special assistance on his departure from Australia by plane in early 2011. I accept the mother’s evidence that the entire right side of her father’s body was affected by the stroke suffered by him, and that he could then, and can now, hardly move his right leg and that he cannot move his right arm. The mother was surprised by the father’s challenge of the status of her father’s health, believing that she did not need to put before the Court evidence that her father would be unable to travel, she noting that in the parenting order proceedings, the father was critical of the failing health of the mother’s father.
The father’s submissions were that the mother’s parents could travel to Australia to see their granddaughter if they applied for a visa to travel, and that they clearly have not done so. The mother concurs that her parents have not applied for such visa, her evidence being that in 2009, when her parents travelled to Melbourne to spend time with her and their grandchild, her father was aged 75 years. At that time, he had to undergo a number of medical and physical tests to be granted the visa. The mother’s evidence is that her father would be unable to get a visa at the present time given that he is aged nearly 79 years and that his physical capacity is greatly reduced from that which it was in 2009. Her evidence was also that there are financial costs issues for her family, and that their health insurance did not cover the cost of the medical care afforded to her father whilst in Melbourne on the last occasion.
The mother’s evidence was further that the cost of her father’s hospitalisation and rehabilitation was borne in part by the hospital and in part by her, and that a further health issue which confronted him whilst he resided in Melbourne, namely a cancerous tumour, was funded by her and only to an exploratory stage. I accept the mother’s evidence that her parents are elderly, that her father is in poor health and that they have no intention of applying for a visa in the future, not only because the obtaining of one is highly unlikely, but also because they could not afford the financial exposure in the event of the grandfather having any further health difficulties requiring medical treatment in this country during any time that he would stay here. I accept the mother’s evidence that her mother is her father’s primary caregiver and that she will never leave him alone in Romania to come to visit her daughter and granddaughter.
[X] is the only grandchild for both the father’s family and for the mother’s family and the child has spent considerable time in the past living in a household with her maternal grandparents. She sees her paternal grandparents, who reside in Adelaide, and has seen them on occasion in the past with the consent of the mother and without the need for court order. The father in giving evidence on this subject, was evasive in his responses.
The father’s evidence is that [X] can spend time with her grandparents in Romania via the internet and videoconference from their home computer. The mother put to him in cross-examination that communication via Skype was not the same as face-to-face contact and did not replace it. The father accepted that Skype was a tool of communication, but that it is not a replacement for face-to-face time spent with, nor does it provide the physical communication that can be had between grandparents and a child for a child of this age.
The father’s evidence was that the mother could choose to relocate or terminate her employment at any time. He noted that she had worked for the same affiliate in Romania in the past and often went abroad to other affiliates in other countries that do not have extradition treaties with the Commonwealth of Australia. He said she was free to terminate her employment without incurring any penalties and further took issue with the status of the person who wrote that she had four weeks annual leave approved for September this year, and confirmed that she was expected to resume her normal duties at [P] upon completion of her annual leave. That correspondence dated 19 April 2012 and annexed to the mother’s affidavit was signed by Mr P, [occupation omitted].
I accept the mother’s evidence that that was the relevant person to provide such information, and note further the confirmation that the mother has been employed on a permanent basis by [P] since April 2004, and that her current role is [omitted] and that she has an annual base salary of $95,646. I accept the mother’s evidence in response to the father’s allegations that the mother could be offered a job outside Australia, that she would not consider one. She has, since 2004, indicated that she is unable to relocate out of Australia and I accept her evidence as set out in paragraph 19 of her affidavit affirmed 20 April 2012:
“I love Australia, and I have no interest in relocating and working in a different country.”
The father claimed the mother has no real connection with people in Australia and that the friends the mother claimed to have were no substitute for her family members all of whom were overseas. The mother tendered in evidence photographs of a surprise 40th birthday party given for her by a number of her friends, which pleased her very much. I accept her evidence that she has developed a “great network of friends and connections that exceeds 50 people who I connect and see regularly”. I accept that this is a part of what she loves about living in Australia.
The father was concerned as to the mother’s inability to provide security for the child’s return to the Commonwealth of Australia. The mother’s financial position is that she has no interest in any real property; has savings in a bank account of some $15,000; has a motor vehicle which is valued at between $15,000 and $17,000; is in receipt of an income of approximately $95,000 and otherwise has no debt or assets. She has used her monies in the past to pay the medical expenses of her father, and to pay for her own and [X]’s necessary living expenses. She has also used funds to pay legal fees for the considerable litigation which has ensued.
The father has a real property in his sole name and in relation to which he has some equity. No property proceedings have been instituted by either party since their separation. The father pays no child support to the mother and he has not done so since August 2009. This is despite his current income approaching $100,000.
The mother and child reside in rental accommodation, being a continuous rental accommodation since September 2009. Their tenancy is a monthly one. The child, [X], is enrolled in three year old kindergarten in a child care located close to where she and the mother live and to the mother’s work place. The mother is happy with this child care arrangement, and her evidence is that [X] has a network of children that they see regularly for play.
The mother was prepared, when asked by the Court, to lodge the sum of $15,000 with the Court as security for the child’s return. This is the total sum in her savings account. The mother was asked by the father how long it would take to liquidate her household furniture and motor vehicle. He put to her that it should take some two hours to liquidate her motor vehicle, and some small number of days to liquidate her household furniture.
I accept that the mother does not have considerable assets available to her in this country, but understand the circumstances as to why she has not, being her arrival in 2004, no property settlement or child support payments and the drain on her finances of medical and litigation costs. She is prepared to make available what she does have by way of security. Accordingly, I propose to make orders that the $15,000 be lodged by her with the Court as a form of security, and further restraining orders with respect to her motor vehicle to enable the equity in that asset to be obtained by the father if necessary, should the mother fail to comply with the orders of the Court.
The father’s evidence is that, with the mother’s immediate family and parents in Romania, there is a very real possibility she may not return the child to this jurisdiction. I accept the mother’s evidence that she has become an Australian citizen and wishes to live nowhere other than Australia, and considers herself fortunate to be able to raise her child in Australia. She does however, believe that [X]’s relationship with her extended family is very important, and thus brings this application to enable [X] to reconnect with her maternal grandparents for a limited time. She accepted that if the Court determined the time period should be less than four weeks, she would travel for the lessened period.
The father also annexed to his affidavit sworn 30 April 2012 various articles to establish that Romania is currently a country known throughout Europe and the civilised world for child and women trafficking, especially young girls, kidnapping, prostitution, fraud, robbery and corruption in all levels of government as well as the private sector. He alleged, in paragraph 27 of his affidavit sworn 30 April 2012, that:
“[X] would face constant danger on a daily basis of being kidnapped and sold on the black market.”
In cross-examination he asked the mother whether she had employed bodyguards for the child whilst overseas. The mother’s response was that she had not done so. Whilst the father asserted that this was necessary, he did not offer to meet any part of the costs in engaging such persons. The mother, in any event, in reply tendered in evidence various media articles pointing to human rights abuse and corruption in Australia. I note both the annexure to the father’s affidavit as set out in annexure 1, and the exhibit tendered by the mother as “exhibit A5” are media articles and no more.
The mother proposes during the time overseas with the child to reside for the entirety of it in her parents’ home. This is a home in a quiet city in Romania. It is where the maternal grandparents have lived in excess of 40 years without disruption. The mother was born in their apartment and grew up in that city. She, at a later time, resided in the home of her uncle for a period of time without difficulty.
Australia and Romania are both signatories to The Hague Convention on the Civil Aspects of International Child Abduction. I accept the mother’s evidence that both she and [X] are well settled in Australia, that she is well appreciated in her work place, and that they both have a network of friends and enjoy living in Australia. I accept the mother’s evidence that she perceives the health and education systems in Australia to be far better than in Romania; the living standards in Australia to be higher than in Romania; and that she believes Australia offers much greater opportunities for both she and her daughter such that she has no intention of permanently leaving Australia and taking the child with her. I accept her evidence that, in order to safeguard her daughter whilst overseas, her daughter will always be in her presence.
Each of the parties put the affidavit evidence that they wished before the Court. They were given that opportunity. There was no evidence from a child psychologist before the Court, and nor was it compulsory that there be so. I reject the father’s assertion that no decision could be made in the absence of a child psychologist’s opinion. [X] will travel with her primary attachment figure to the home of her maternal grandparents with whom she spent a large part of her earlier years. Whilst she will be in a different country with a different culture and language, she is spoken to in Romanian daily by her mother, and can speak both English and Romanian consistent with the language fluency of a child her age.
I am mindful that this time away will be time without her father and consider that it promotes her best interests that she see her father shortly after her return and for a slightly longer period than that which is routinely in place. I do not consider it to be in her best interests that she must, by way of some form of make-up or compensatory time, spend time equivalent to that which she has spent overseas in the sole care of her mother. Her best interests are served by being able to travel with her mother and reunite with family before returning to Australia and resuming her usual time spent with her father, albeit augmented slightly. A period of some three weeks and two days away, given her age, should be sufficient and promote her best interests by not being too extensive.
This travel is a particular opportunity afforded to [X] at this time. She will be able to communicate with her father by telephone in the interim. If the father has a Skype facility available to him, then communication can be had through that medium. Upon her return and given her absence from her father, it will be beneficial for her to spend a little longer than is usual in his care. However, that should not be for any overly extended period which puts her then away from her primary attachment figure at a young age. It may also become oppressive to her in terms of it being additional to the usual operation of the other orders. It is not a matter of compensating one parent but rather promoting the child’s best interests.
These reasons are delivered ex tempore in light of the Appeal Court’s desire that the matter be heard promptly on remittal in this Court to avoid the mother’s application becoming academic. The mother’s evidence is that she has approved annual leave in the month of September 2012 and would like to travel at that time. It is also a sentimental time for her parents who will be celebrating 50 years together. She would like to be there for that celebration. It is in her daughter’s best interests that she be permitted to accompany her mother.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 6 August 2012
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